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Consent Order - EN0000246 - County Environmental Health - Certified Unified Program Agency - 25 Prado.pdf
COUNTY OF SAN LUIS OBISPO CERTIFIED UNIFIED PROGRAM AGENCY April 25, 2014 Via Hand Delivery City of San Luis Obispo Attn: Ms. Katie Lichtig, City Manager 990 Palm Street San Luis Obispo, CA 93401 RE: In the Matter of the City of San Luis Obispo (EN0000246) Dear Ms. Lichtig: Enclosed for your signature is the Consent Order (Order) which incorporates the areas of agreement as discussed during our meeting on April 24, 2014. Please review and sign the Order and return the signed Order within fifteen (15) days of receipt to the address below: San Luis Obispo County Public Health Department Attn: Aaron LaBarre Environmental Health Services 2156 Sierra Way San Luis Obispo, CA 93406 A copy of the final Order will be sent to you after it is signed by the Certified Unified Program Agency (CUPA). Please note that the Order will not become effective until the date it is signed by the CUPA. Please also note that the required payment is due to the CUPA within fifteen (15) days of the effective date of the Order. If you have any questions regarding this letter or the Order, please contact me at (805) 781 -5595. Si cereiy, aron LaBarre, R.E.H.S. Supervising Environmental Health Specialist Hazardous Material Section Enclosure COUNTY OF SAN LUIS OBISPO CERTIFIED UNIFIED PROGRAM AGENCY In the Matter of: City of San Luis Obispo Attn: Ms. Katie Lichtig, City Manager 990 Palm Street San Luis Obispo, CA 93401 RESPONDENT 1. INTRODUCTION Case No. EN0000246 CONSENT ORDER Health and Safety Code Section 25404. 1.1 April 25, 2014 1.1 Agreement. The County of San Luis Obispo Environmental Health Services, the Certified Unified Program Agency for the County of San Luis Obispo, and the City of San Luis Obispo Fire Department, a Participating Agency (collectively, Agency) and the City of San Luis Obispo (Respondent) enter into this Consent Order (Order) and agree as follows: 1.2 Site. Respondent handles hazardous materials at the following site: 25 Prado Road, San Luis Obispo, CA (Site). 1.3 Permit/interim Status. The Respondent has an authorization from the Agency, issued on January 1, 2011, as a hazardous materials handler. 1.4 Jurisdiction. Sections 25187 and 25404.1.1 of the California Health and Safety Code (HSC) authorize the Agency to order action necessary to correct violations and assess a penalty when the Agency determines that any person has violated specified provisions of the HSC or any permit, rule, regulation, standard, or requirement issued or adopted pursuant thereto. 1.5 Exhibits. The following exhibits are attached to this Order and are incorporated herein by this reference: EN0000246 April 25, 2014 • Agency Notices and Respondent Response (Exhibit A). • Applicable Statutes and Regulations (Exhibit B). • Determination of Penalties (Exhibit C). • 2013 -15 City of San Luis Obispo Financial Plan (Exhibit D). 2. ALLEGED VIOLATIONS 2.1 The Agency alleges that the Respondent failed to maintain or operate the Site to minimize the possibility of a sudden or non: sudden release of hazardous materials or wastes (creosote, paint) to the soil and disposed of waste latex and oil -based paint to the land on or about February 2, 2011 in violation of HSC Section 25189.5, Section 66265.31 of Title 22 of the California Code of Regulations (CCR) and HSC Section 25217.1 (Alleged Violation 2.1). Analytical samples obtained on December 23, 2011 at the Site confirmed the presence of creosote in the soil. 2.2 The Agency alleges that the Respondent failed to report a release of hazardous materials (as described in Alleged Violation 2.1) to the Agency in violation of HSC Section 25507 and Section 2703 of Title 19 of the CCR (Alleged Violation 2.2). 2.3 The Agency previously made additional allegations of violation in connection with, arising out of or related to the above - described disposal, including, without limitation, the alleged violations set forth in the Notice of Violation dated February 17, 2012 and contained within Exhibit A to this Order, that are not being alleged within this Order (Previously Alleged Violations). 3. DISPUTE A dispute exists regarding the Alleged Violations and the Previously Alleged Violations described in Section 2 of this Order. 4. COMPLIANCE The parties wish to avoid the expense of litigation and ensure prompt compliance. 5. HEARING Respondent waives any right to a formal hearing in this matter. Respondent agrees that due process has been provided with respect to this matter, but expressly reserves the right OA EN0000246 April 25, 2014 to assert any and all defenses, including due process defenses, to allegations arising out of or relating to the Alleged Violations and Previously Alleged violations described in Section 2 that are the subject of this Order in the event that the Agency, or any other agency having enforcement jurisdiction, pursues any further enforcement actions against Respondent. 6. CONSENT ORDER This Order shall constitute full and final settlement of Alleged Violation 2.1, Alleged Violation 2.2, the Previously Alleged Violations described in Section 2, and /or any other violations the Agency has alleged or could allege relating to the incident that is the subject of the Notice of Violation described in Section 2. Nothing herein shall limit the Agency from taking appropriate enforcement action concerning any other violations, which are not the subject of this Order, or from taking appropriate enforcement action concerning the violations described herein in the event that Respondent breaches this Order. 7. SCHEDULE FOR COMPLIANCE Respondent agrees to: 7.1 Immediately report all releases, or threatened releases, of hazardous materials to this Agency and the California Emergency Management Agency (Cal -EMA) as required by HSC Section 25507 and Section 2703 of Title 19 of the CCR. 7.2 Maintain the Site to prevent the release of hazardous materials or wastes to the environment. 7.3 Pay the Agency $8,690.00 as penalty within fifteen (15) days of the Effective Date of this Order. 8, SUBMITTALS All submittals from Respondent pursuant to this Order shall be sent to: San Luis Obispo County Public Health Department Environmental Health Services Attn.: Aaron LaBarre 2156 Sierra Way San Luis Obispo, CA 93406 9. COMMUNICATIONS All approvals and decisions of the Agency made regarding submittals and notifications will be communicated to the Respondent in writing by an Environmental Health 3 EN0000246 April 25, 2014 Specialist, or his /her designee. No informal advice, guidance, suggestions, or comments by the Agency regarding reports, plans, specifications, schedules, or any other writings by Respondent shall be construed to relieve Respondents of the obligation to obtain such formal approvals as may be required. 9.1 Agency Review and Approval. If the Agency determines that any report, plan, schedule, or other document submitted for approval pursuant to this Order fails to comply with the Order or fails to protect public health or safety or the environment, the Agency may: a. Modify the document as deemed necessary and approve the document as modified, provided that modifications do not result in increases to the penalties or imposition of additional obligations beyond those agreed to in this Order; or b. Return the document to Respondent with recommended changes and a date by which Respondent must submit to the Agency a revised document incorporating the recommended changes. 9.2 Compliance with Applicable Laws. Respondent shall carry out this Order in compliance with all local, state, and federal requirements, including but not limited to requirements to obtain permits and to assure worker safety. 9.3 Endangerment during Implementation. In the event that the Agency determines that any circumstances or activity (whether or not pursued in compliance with this Order) is creating an imminent or substantial endangerment to the health or welfare of people on the Site or in the surrounding area or to the environment, the Agency may order Respondent to stop further implementation of this Order for such period of time as needed to abate the endangerment. Any deadline in this Order directly affected by a Stop Work Order under this section shall be extended for the term of the Stop Work Order. 9.4 Liability. Nothing in this Order shall constitute or be construed as a satisfaction or release from liability for any conditions or claims arising as a result of past, current, or 4 EN0000246 April 25, 2014 future operations of Respondent except as provided for in Section 6 of this Order. Notwithstanding compliance with the terms of this Order, Respondent may be required to take further actions as are necessary to protect public health or welfare or the environment to the extent required by applicable law. 9.5 Site Access. Access to the Site shall be provided at all reasonable times to employees, contractors, and consultants of the Agency, and any agency having jurisdiction. Nothing in this Order is intended to limit in any way the right of entry or inspection that any agency may otherwise have by operation of any law. The Agency and its authorized representatives shall have the authority to enter and move freely about all property at the Site at all reasonable times for purposes related to the implementation and monitoring of compliance with this Order, including but not limited to: inspecting records, operating logs, and contracts relating to the Site; reviewing the progress of Respondent in carrying out the terms of this Order; and conducting such tests as the Agency may deem necessary. Respondent shall permit such persons to inspect and copy all records, documents, and other writings, including all sampling and monitoring data, in any way pertaining to work undertaken pursuant to this Order. 9.6 Data and Document Availability. Respondent shall permit the Agency and its authorized representatives to inspect and copy all sampling, testing, monitoring, and other data generated by Respondent or on Respondent's behalf in any way pertaining to work undertaken pursuant to this Order. Respondent shall allow the Agency and its authorized representatives to take duplicates of any samples collected by Respondent pursuant to this Order. Respondent shall maintain a central depository of the data, reports, and other documents prepared pursuant to this Order. All such data, reports, and other documents shall be preserved by Respondent for a minimum of six (6) years after the conclusion of all activities under this Order. If the Agency requests that some or all of these documents be preserved for a longer period of time, Respondent shall comply with that request, 4� EN0000246 April 25, 2014 deliver the documents to the Agency, or permit the Agency to copy the documents prior to destruction. Respondent shall notify the Agency in writing at least six (6) months prior to destroying any documents prepared pursuant to this Order. 9.7 Government Liabilities. The Agency shall not be liable for injuries or damages to persons or property resulting from acts or omissions by Respondent or related parties in carrying out activities pursuant to this Order, nor shall the Agency be held as a party to any contract entered into by Respondent or their agents in carrying out activities pursuant to the Order. 9.8 Incorporation of Plans and Reports. All plans, schedules, proposals and reports that require Agency approval and are submitted by Respondent pursuant to this Order are incorporated in this Order upon approval by the Agency. 9.9 Extension Request. If Respondent is unable to perform any activity or submit any document within the time required under this Order, the Respondent may, prior to expiration of the time, request an extension of time in writing. The extension request shall include a justification for the delay. 9.10 Extension Approvals. If the Agency determines, in its sole discretion, that good cause exists for an extension, it will grant the request and specify in writing a new compliance schedule. 10. PAYMENT Respondent shall pay the Agency the calculated penalties set forth in Exhibit C in accordance with the schedule contained within Section 7 of this Order. Payment shall be made via check and shall identify the Respondent and Case Number, as shown in the heading of this Order. Respondent shall deliver payment to: San Luis Obispo County Public Health Department Environmental Health Services 2156 Sierra Way San Luis Obispo, CA 93406. R EN0000246 April 25, 2014 If Respondent fails to make payment as provided above, Respondent agrees to pay interest at the rate established pursuant to HSC Section 25360.1 and to pay all costs incurred by the Agency in pursuing collection, including attorney's fees. The Agency shall not process the payment until the Agency signs the Order. 11. OTHER PROVISIONS 11.1 Additional Enforcement Actions. By agreeing to this Order, the Agency does not waive the right to take further enforcement actions, except to the extent provided in this Order. 11.2 Penalties for Noncompliance. Failure to comply with the terms of this_ Order may subject Respondent to civil penalties for any costs incurred by the Agency or other government agencies as a result of such failure, as provided by HSC Section 25404. 1.1 and other applicable provisions of law. 11.3 Parties Bound. This Order shall apply to and be binding upon the parties and any successor agencies of the parties that may have responsibility for and /or jurisdiction over the subject matter of this Order. 11.4 Effective Date. The effective date of this Order is the date it is signed by the Agency. 11.5 Integration. This Order constitutes the entire agreement between the parties and may not be amended, supplemented, or modified, except as provided in this Order. 11.6 Notice of Disposal. Respondent shall, by certified mail, return receipt requested, provide the Agency with hazardous waste manifest(s), if any, for disposal of any hazardous waste removed from the Site. [SIGNATURES TO FOLLOW ON NEXT PAGE] 7 EN0000246 April 25, 2014 RESPONDENT: CITY OF SAN LUIS OBISPO Ms. Katie Lichtig City Manager Dated: Sign ture of Respo dent APPROVED AS TO FORM AN LEGAL EFFECT: CHRISTINE DIETRICK C' y rney Dated: a aai y AGENCY: CERTIFIED UNIFIED PROGRAM AGENCY (CUPA) In and For San Luis Obispo County A Public Agency in the State of California Dated: Curtis A. Batson, R.E.H.S.- Environmental Health Director EXHIBIT A SAN LUIS OBISPO CITY FIRE AND SAN LUIS OBISPO COUNTY ENVIRONMENTAL HEALTH AGENCY NOTICES CI � Of sAn LUIS oaspo 990 Palm Street. San Luis Obispo, CA 93401 -3249 August 7, 2012 Aaron LaBarre Supervising Environmental Health Specialist Certified Unified Program Agency Public Health Department P.O. Box 1489 San Luis Obispo, CA 93406 Re: Analysis of SLO County Health'.s Notice of Violation Hearing Summary for the City of San Luis Obispo Facility Located at 25 Prado Road, San Luis Obispo. Dear Mr. LaBarre: Please accept this correspondence as the City's formal response to your hearing summary dated May 31, 2012. We thank you for your willingness to continue our follow up meeting in an effort to allow the City an opportunity to address some issues raised at the hearing conducted on April 25, 20I2 and the follow up summary. On the morning of the hearing, the City received the CUPA's (Mr. Kerry Boyle) chronology of events and supporting documentation, which was hand delivered just an hour before the Notice of Violation (NOV) hearing. Unfortunately, City representatives had not had the opportunity to review the package of documents prior to the hearing and, thus, could not be fully prepared to respond. As a result, we believe the hearing summary is not fully reflective of the City's positions on the facts and includes some conclusions that we believe are unfounded when' evaluated in the context of the full record of the events at the core of the hearing. But to be clear, the City is pleased to see the confirmation that the City was in compliance on all issues raised by the NOV on the date of the office hearing and we appreciate that confirmation and the CUPA- PA's cooperation in helping us to identify areas where improvements were needed. That said, we continue to believe that some of the ultimate conclusions reflected in the hearing summary are premised on misunderstandings of the record and events occurring on or about February 2, 2011. Despite having been notified of the event upon discovery that impermissible substances may have been involved, having been on site in close proximity to the occurrence of the event, and having directed and supervised the cleanup, the CUPA's conclusions seem to rely, in part, upon a "factual" context as reported by unreliable media reports that are not based on accurate facts, appropriate investigation, or proper CUPA procedure. Moreover, the information purported to support the CUPA's conclusion of intentional City misconduct did not emerge until almost a year after the event was believed by the City to have been resolved consistent with CUPA direction. From that unreliable context, the CUPA created a .post hoc chronology of events that assumes intentional City misconduct, which is not supported by the record and which EThe City of San Luis Obispo is committed to include the disabled in all of its services. programs and activities. �` Telecommunications Device for the Deaf (805) 781 -7410. a Aaron LaBarre August 7, 2012 Page 2 reaches a revisionist conclusion, based on a single out of context e-mail, which forms the basis of the findings in the May 31, 2012 summary of hearing. As set forth below, the City disputes the findings related to notification violations and intentional misconduct. All facts and witnesses relevant to those conclusions were available to and cooperated with the CUPA -PA concurrent with discovery of the event in early February 2011. However, to date, no documentation has been produced to the City supports the conclusion of intentional misconduct or of a failure to report the incident, once the City was aware that substances subject to reporting were at issue. At the April 25, 2012 NOV informal meeting, the CUPA notified the City that it was in compliance "as to all matters set forth in the NOV. Pursuant to CUPA policy, the City's understood at that meeting s that a finding of compliance and cooperation would resolve any outstanding potential enforcement issues. Contrary to CUPA policy, the summary of hearing suggests that the City continues to be violation, and may be exposed to an Administrative Enforcement Order (AEO) if the Department of Toxic Substances Control (DTSC) decides against any formal enforcement. Given the nature and extent of the DTSC investigative process and the City's high level of cooperation with that agency at every stage of its involvement, the City asserts that such formal action by the CUPA would be inappropriate and unsupported by applicable policy. Accordingly, the City requests reconsideration of such a course of action based on the clarifications provided below. 1. Notification: "CUPA or CUPA -PA was not immediately notified of the discharge of hazardous materials at the time of discharge or discovery by a person." City Response: Notifications were not immediately made upon discharge of substances onto the isolated asphalt surface at the City's Corporation Yard because staff was unaware that a violation existed. When the City became aware of a potential violation the CUPA was notified. Upon Kerry Boyle's arrival to the site on February 2, 2011, the site remained substantially unaltered and Mr. Boyle made no inquiry regarding the date of discharge and provided no notice of possible notification or reporting violations. Bud Nance, the City supervisor charged with oversight of the event and concurrent clean -up, believes that Mr. Boyle was advised that the materials were released earlier than February 2, 2011, even if the exact date, which appears to have been within a few days prior to the notification, was not known or discussed at the time of Mr. Boyle's inspection and clean -up direction. Mr. Nance recalls that Mr. Boyle did write down information about the cans that were at the site on February 2 or 3, 2011. Mr. Nance further reports that Mr. Boyle advised him that Mr. Boyle would file a report for record regarding the February 2, 2011 release. Based on Mr. Nance's interaction with Mr. Boyle, concurrent with the event, Mr. Nance believed in good faith that City reporting requirements, if any, had been satisfied through the involvement of the CUPA -PA and subsequent clean -up direction provided by the CUPA -PA and followed by the City. The City fully cooperated with the CUPA -PA at the time of the event, accepted r f Aaron LaBarre August 7, 2012 Page 3 responsibility for the mistaken belief that the release was permissible, and took prompt corrective action upon learning that impermissible substances had been involved and/or improper practices followed. Only after the investigation was resurrected almost a year later, did the City learn that the CUPA -PA has no written documentation for the February 2011 event. Thus, it appears that no concurrent CUPA record of events exists. Mr. Boyle advised Mr. Nance and David Hix, Deputy Utilities Director, during a March 21, 2012 re- inspection of the Corporation Yard, that the February 2 or 3, 2011 documentation was later lost. There is no evidence that the release as witnessed by Mr. Boyle on February 2, 2012 had been significantly altered or reduced based upon photos taken by an unidentified source, which did not surface until December 2011. There is certainly no credible or quantifiable evidence that has been shared with the City to date that the nature or extent of the spill was different than what was directly observed by Mr. Boyle on site. Thus, the CUPA's long delayed conclusion that "...the original spill event could (emphasis added) produce a higher degree of environmental concern than was ultimately observed by Kerry Boyle on 2 -2 -11" is entirely speculative and cannot be supported by the record in this case. In summary, the City provided notification to the CUPA -PA on February. 2, 2011 upon understanding that an impermissible release may have occurred and the City has since updated its policies and provided further training to its staff regarding notification requirements. 2. Intentional Wrongful Disposal of Hazardous Wastes: "Kerry Boyle initially believed (2 -2 -11) the Wastewater Collections Supervisor was ignorant of the requirements, made a mistake and did not intend to. be in violation. Kerry Boyle learned on 12 -21 -11 that the Wastewater Collections Supervisor had completed improper disposal to save money, thus confirming intent to violate the requirements." City Response: Mr. Nance, the City's Wastewater Collection Supervisor has advised City management, the CUPA -PA, and DTSC investigators that he did not intentionally violate hazardous materials regulations. The CUPA's conclusion to the contrary appears to be entirely based on a single, out of context e-mail from Mr. Nance to Gary Keavney (the City's Streets Maintenance Supervisor) and others on February 2, 2011. That e-mail reads, in relevant part, ` {I am drying out the paint so the empty cans can be disposed of in the trash. If I hazmat it out it will cost a tremendous amount of money. This is the most economically (sic] way to take care of it." The e-mail in question reflects no awareness by Mr. Nance at that time that creosote or any other impermissible substances were involved, but is consistent with his understanding at the time that he had directed the disposal only of latex paint and that the practice employed for doing so was permissible. Moreover, relying solely on that e-mail, out of its context of the entire chain of communications that day about the events in question creates an erroneous impression. The e -mail on which the Aaron LaBarre August 7, 2012 Page 4 CUPA relies must be read in the context of a related e-mail from Mr. Nance to Mr. Keavney and others on the same day in which Mr. Nance says, in relevant part: "It was all under my direction for staff to empty the paint cans from the Hazmat Shed in that area. When the paint and cans dried 1 was going to properly dispose of the materials... This was my approach, as far as 1 was concerned to legally disposing of the paint that was in the shed. There was a gallon of creosote that was dumped by mistake and that was my fault." (emphasis added). The complete e-mail conversation about this issue, which is the only concurrent record of intent of which the City is aware, clearly supports Mr. Nance's version of events and Mr. Boyle's initial, assessment of the event that the release constituted "...a mistake and [Mr. Nance] did not intend to be in violation." The good faith nature of any mistakes Mr. Nance may have made, as well as the appropriateness of his belief that disposal of latex paint in the manner he directed is further supported by Mr. Boyle's statement in his April 24, 2012 chronology of events, wherein he summarizes his concurrent direction for clean -up on February 3, 2011 as follows: "Dried latex paint was segregated and disposed of in a dumpster as solid waste, which is permissible." Thus, the statement made by Mr. Nance on February 2, 2011 at 10:58 a.m. is evidence that he believed disposal of paint in the mariner directed was a legal, appropriate and cost effective method of disposal; it is by no means an admission that he intentionally violated regulatory standards for a cost motive. Indeed, the minimal cost avoidance involved here reveals such a conclusion as nonsensical. The City certainly understands how after - the -fact perceptions of this situation may have been influenced by unsupported and /or anonymously sourced media coverage. However sensationalism aside, the documented concurrent record clearly does not support a conclusion of intentional misconduct and the City asserts that any regulatory action based on such post hoc mischaracterization would be inappropriate and legally unsupportable. 3. Improper Handling of Latex Paint: "Facility improperly handled and recycled waste latex paint. Waste latex paint is required to be recycled." City Response: The CUPA cites its understanding based on current codes that the City's past practice constituted a mishandling of the latex paint. However, since the time this matter re- emerged, there has been a great deal of confusion, including by CUPA -PA representatives, regarding permissible methods of disposal. It is the City's understanding and assertion that, at the time of the release, there was regulatory guidance information that suggested latex paints could be disposed of properly by being dried and then placed in the trash. That is precisely what Mr. Nance indicated he directed and intended to do with the latex paints. Again, the City's understanding would appear to be supported by the clean -up direction, cited above, which was provided by the CUPA- PA to staff at the time of the event. Specifically Mr. Boyle's instructions were to segregate the latex paint for purposes of drying out and-dispose of the paint as solid waste. Aaron LaBarre August 7, 2012 Page 5 It appears the release of additional substances may have resulted from poor communication, mistakes and /or misunderstandings of regulatory requirements, but there is no intentional misconduct involved. In any event, the City has worked cooperatively with the CUPA at every step to ensure with absolute certainty that no remnant of any potentially harmful material remains on the grounds. To that end, the City is now completing the Corporation Yard Assessment in cooperation with the CUPA. 4. CUPA Response to Discharge Event: "Kerry Boyle confirmed compliance with cleanup directives on 2 -4 -11. CUPA decided to evaluate the chain of notifications and timing after the news article was presented on 12- 16 -11. CUPA -PA completed a formal NOV on 2- 17 -12: Once it was determined formal notice of the discharge event by the facility was not completed; written confirmation of Kerry Boyle's verbal notice from 2 -2 -11 was needed; to formally identify and recognize the discharge event as intentional disposal; to identify uncorrected violations and to complete procedure" Again, the City acknowledges that mistakes with respect to materials disposal occurred on or about February 2, 2011 and that Mr. Boyle did provide a verbal directive to cease disposal. The City complied with that directive and followed Mr. Boyle's clean -up direction. Mr. Boyle did not provide the City with any written documentation of his inspection and /or findings related to the event, nor, apparently, did he deem additional investigation warranted at the time of the event. The City did not receive written notification that it had any outstanding or open violations, no notices of violations were issued, and no opportunity was provided for the City to address alleged violations or take action to achieve compliance until February 17, 2012, after the unsupported media article was published (more than a year after the event). Such a course of action clearly placed the City at a distinct disadvantage to gather facts and evidence and obtain the best recollections df witnesses to and participants in the event. Likewise, Mr. Boyle was placed at a distinct disadvantage in having to re- create facts from memory a year later and under the scrutiny of media attention. The CUPA's own summary suggests that it was only after the media article about the release that the CUPA decided, with no indication to the City for almost a year after the event, there was an open violation. In conversations with Mr. Hix and others shortly after the article was published, Mr. Boyle expressed to Mr. Hix and others that he believed the issue was settled by the actions taken by the City immediately after February 2, 2011. The City shared that belief and felt that the response at the time was both proportional and appropriate to the event, which was small, isolated, of a limited duration, and did not present any significant risk to human health or the environment. The NOV issued to the City in February 17, 2012, necessarily lacked appropriate documentation because it represented an after - the -fact reconstruction, and in some instances re- characterization, of facts. As previously discussed with the CUPA, the conclusions reflected in the NOV regarding the existence of violations and "recurring and uncorrected violations..." were not issues of which the City was made aware in the manner in which a regulated facility would normally be provided notice under CUPA procedures. The record was created retrospectively, F I Aaron LaBarre August 7, 2012 Page 6 rather than concurrently, at a time when the City was working almost exclusively and cooperatively DTSC (a superior agency). The hearing summary suggests that the NOV was deemed necessary only after the CUPA's conclusion that there had been reporting deficiencies and intentional conduct, which also seems to be, the basis for the CUPA's preliminary conclusion that some formal enforcement is warranted at this stage. The City would ask that the CUPA reevaluate that conclusion. CUPA has policies and procedures for inspection and enforcement and it appears the formal enforcement procedure has not been followed and, in light of the information provided herein, would not be the appropriate course of action. However, it does appear the CUPA and the City achieved compliance by means of the CUPA utilizing its own informal enforcement procedures for minor violations. The City is optimistic that the clarification it has provided herein with respect to the significant issues of notice and intentional conduct will be helpful to the CUPA in determining the appropriate course forward, consistent with its policies and procedures. The City has cooperated and complied with notices and direction at every turn and is committed to working cooperatively with the CUPA to ensure best practices going forward. As such, the City suggests that formal administrative action is neither necessary, nor appropriate at this late date after the event and requests that the CUPA re- evaluate the matter consistent with its informal enforcement procedures and deem this matter appropriately resolved. We look forward to discussing this matter further at our meeting scheduled for August 8, 2012. Please feel free to contact me if you have any further questions. Thank you for your consideration. JCD /cp Cc. Katie Lichtig Carrie Mattingly Dave Hix Charlie Hines Kerry Boyle Rodger Maggio Very truly yours, 1 J. Christine Dietrick City Attorney May 31, 2012 SI` .1 LUIS OBISPO COUN �L ' HEALTH AGENCY City of San Luis Obispo Public Works Department Mr. Jay Waiter, Director of Public Works 919 Palm Street San Luis Obispo, CA 93401 Public Health Department 2191 Johnson Avenue ■ P.O. Box 1489 San Luis Obispo, California 93406 805- 781 -5500 ■ FAX 805- 781 -5543 Jeff Hamm Health Agency Director Penny Borensidi; M.D., M.P.H. Health Offker /Public Health Administrator. City of San Luis Obispo Utilities Department Ms. Came Mattingly, Director of Utilities 879 Morro Street San Luis Obispo, CA 93401 NOTICE OF VIOLATION HEARING SUMMARY FOR THE CITY OF SAN LUIS OBISPO FACILITY LOCATED AT 25 PRADO ROAD, SAN LUIS OBISPO Ms. Mattingly and Mr. Walter On April 25, 2012 at 9 :30 AM, this Agency, the Certified Unified Program Agency (CUPA) for San Luis Obispo County geld a Notice of Violation (NOV) Hearing at our office to review the cited violations, compliance with the violations, and the potential of enforcement action. Individuals from the City of San Luis Obispo in attendance: Carrie Mattingly, Jay Walter, Dave Hix and Christine Dietrick. Certified Unified Program Agency - Participating Agency (CUPA -PA) representatives in attendance: Rodger Maggio, Fire Marshall, City of San Luis Obispo Fire Department, Kerry Boyle CUPA Inspector, City of San Luis Obispo Fire Department. CUPA representatives present: myself and Tim McNulty with San Luis Obispo County Counsel's Office. This letter summarizes items discussed and determinations made by the CUPA during the meeting. We discussed the following: • Agency Inspection and Enforcement Policy. I provided an overview of our policy. • Corrected violations cited in the NOV. • Discharge event and response. CUPA Inspector Kerry Boyle presented the chronology of events. • Notification to the CUPA of a spill or discharge of hazardous materials. • Direction provided by the CUPA • Response to direction from the CUPA • Formal Enforcement Agency made the foll6Png decisions and determinations?'' • Compliance with the NOV. Facility has responded to the NOV, addressed the Items within Jhe NOV, provided requested documentation and is currently in compliance. • CUPA or CUPA -PA was not immediately notified of the discharge of hazardous materials at the time of discharge or discovery by a person. o Facility supervisor or management did not perform notifications to the CUPA. o Kerry Boyle initially believed (on 2 -2 -11) official spill notification was provided by the Utilities Division to City Storm Water Inspector Doug Dowden and Doug then provided the notice to the CUPA PA on behalf of Utilities. Doug is not employed by the Utilities Department. o Kerry Boyle believed event -had just transpired when he responded on 2 -2- 11. o CUPA learned after press article .on 12 -16-11 that the discharge event appeared to have occurred before CUPA was notified on 2 -2 -11. Photos from news article illustrated the original spill event could produce a higher degree of environmental concern than was ultimately observed by Kerry Boyle on 2 -2 -11. The photos indicated discharged hazardous materials had not volatilized, indicating the discharge event likely occurred days before. On 2 -2 -11, Kerry Boyle witnessed a much reduced level of environmental concern due to evaporation of hazardous materials occurring prior to his inspection. • Facility improperly disposed of hazardous waste. The hazardous waste discharged as identified by inspection and laboratory analysis was creosote. Waste oil based paint products are also hazardous wastes. • Kerry Boyle initially believed (2- 2 -11) the Wastewater Collections Supervisor was ignorant of the requirements, made a mistake and did not intend to be in violation. • Kerry Boyle learned on 12 -21 -11 that the Wastewater Collections Supervisor had completed improper disposal to save money, thus confirming intent to violate the requirements. • The CUPA or the CUPA -PA has had no prior experience such as this with the City. • CUPA and CUPA -PA believes City Management did not direct employee to act in the manner demonstrated and it is contrary to City procedure. • Facility improperly handled and recycled waste latex paint. 'Waste latex paint is required to be recycled. Christine Dietrick asked what the code requirements on the recycling and disposal of latex based paint are. Our understanding teased on current codes is that waste latex paint in not a hazardous waste as defined by Code of Federal Regulations (CFR) 40 or California Code of Regulations (OCR) Title 22 but is a solid waste as defined by San Luis Obispo County Ordinance 8.12, and is regulated paint pursuant to San Luis Obispo County Integrated Waste Management Authority (IWMA) Ordinance # 2009 -1 and is a regulated waste under California Health and Safety Code (HSC) 5410 and is subject to disposal restrictions under the Water Code and the Fish and Game code. San Luis Obispo County Ordinance and San Luis Obispo County IWMA Ordinance require waste paint to be properly disposed or recycling at a permitted facility and HSC requires its proper disposal. I clarified that waste oil based paint or petroleum based paint products are hazardous wastes and are subject to CCR Title 22 Hazardous Waste Control Law. �. • CUPA -PA ResponQb to discharge event: ^!^ o On 2 -2 -11, berry Boyle did provide Waste Water Collections Supervisor Wth a verbal cease and desist notification, required corrective action including cleanup, proper disposal documentation and training documentation. o Kerry Boyle sent a follow up e-mail on 2 -3--11 to Waste Water Collections Supervisor and Deputy Director of Waste Water Collections requesting policies and procedures on handling and disposal of hazardous materials and the program's budget for hazardous materials and waste disposal and that no re- occurrences of improper disposal shall occur. o Kerry Boyle confirmed compliance with cleanup directives on 2 -4-11. ° CUPA decided to evaluate the chain of notifications and timing after the news article was presented on 12- 16 -11. o CUPA -PA completed a formal NOV on 2- 17 -12: Once it was determined formal notice of the discharge event by the facility was not completed; written confirmation of Kerry Boyle's verbal notice from 2 -2 -11 was needed; to formally identify and recognize the discharge event as intentional disposal; to Identify uncorrected violations and to complete procedure. • Formal enforcement: • CUPA requested CUPA -PA to complete a case review and evaluate if enforcement is required pursuant to CUPA policy. Rodger Maggio concluded formal enforcement should proceed according to CUPA Policy. Dodger's determination is consistent with the CUPA's policy and is how the CUPA would proceed and has proceeded to date. • CUPA -PA proposed to the CUPA to defer formal enforcement to Department of Toxic Substances Control (DTSC), (division of Cal -EPA) based on their stated intent to pursue formal enforcement. • DTSC has expressed intent to complete formal enforcement on failure to of the regulated facility to directly notify. the CUPA and illegal disposal of hazardous waste without a permit. • Agency will monitor DTSC's progress and will determine enforcement case status after 12 months. • CUPA -PA will proceed with a formal enforcement (Administrative . Enforcement Order) if DTSC does not proceed with a. case. If you have questions concerning this letter, please call me at 805 - 781 -5595. Sincerely, k 4t� -o Aaron LaBarre, R.E.H.S. Supervising Environmental Health Specialist Certified Unified Program Agency ' ®City of SAn Luis OBISPO 1 990 Palm Street., San Luis Obispo, CA 93401-3249 March 16, 2012 Via email (PDID and U.S. Mail Mr. Kerry Boyle City of San Luis Obispo Fire Department 2160 Santa Barbara Avenue San Luis Obispo, CA 93401 -5240 SUBJECT: Notice of Violation, City of San Luis Obispo Public Works Department. SETTLEMENT COMMUNICATION Dear Mr. Boyle: The City of San Luis Obispo is in receipt of your February 17, 2012, Notice of Violation (NOV) letter asserting violations by the City arising out of a February 2, 2011 complaint at the City's Corporation Yard located at 25 Prado Road. Presently, the City is reviewing its processes and procedures to ensure effective and on -going compliance with all applicable federal and state laws regarding the treatment of wastes. As you are aware, the same complaint concerning a limited discharge of certain latex paint and other materials at the Corporation Yard that forms the basis for the CUPA's OV is also the subject of an ongoing investigation by superior agencies, the State Department of Toxic Substance Control and the Environmental Protection Agency. To the City's knowledge, those investigations have not been completed. During the course of those investigations, in which the City has fully cooperated, the City has been advised that the City and /or its employees could face civil and or criminal penalties if certain allegations are found to be true. However, no final findings have been provided to the City or its employees, nor has the City or any of its employees been apprised of any charges against them by DTSC or EPA. Facing concurrent actions for the same alleged conduct by both inferior and superior agencies places the City and its employees in a difficult legal and procedural position and prejudices the City's ability to fully and fairly respond to allegations against it. As a result, the City must object to the NOV by the CUPA and expressly reserve its right to assert procedural and /or substantive objections to any subsequent actions by the CUPA, DTSC or EPA. The City hereby reserve its rights to assert any and all objections and /or defenses to the NOV issued by the CUPA, without prejudice to or waiver of its right to assert further or additional objections, defenses and /or claims as may be warranted in the event that enforcement action is pursued by one or more of those regulatory agencies. At this time, the City specifically objects to the NOV OThe City of San Luis Obispo is committed to include the disabled in all of its services, programs and activities. Telecommunications Device for the Deaf (805) 781 -7410. RE: Notice of Violation, City of San Luis Obispo Public Works Dept.Settlement Communication March 16, 2012 Page 2 on the basis that it was not issued in accordance with the CUPA's own policies and procedures for inspection of and enforcement against regulated facilities. Further, the NOV violates fundamental principles of procedural and substantive due process in that it lacks basic information regarding times, dates, locations, duration, materials and factual substantiation of legal conclusions that violations have occurred and /or are continuing. Additionally, the City objects to the concurrent enforcement action by an inferior agency or the DTSC as violating the fundamental principles of due process. Thus, the City responds to the NOV and asserts objections and /or defenses, as set forth herein, making no admission of liability or wrongdoing and expressly reserving any claims or defenses set forth herein or to which the City or its employees might otherwise be entitled. Finally, the City provides the responses herein as part of settlement discussions pursuant to Evidence Code Sections 1151, 1152 and reserves its right to object to any attempt to use any information contained in this letter as a statement against interest or admission of wrongdoing in any subsequent civil or administrative proceeding arising from or relating to the violations alleged herein. The City is committed to environmental and safety compliance with all regulatory requirements, but is limited in its ability to provide comprehensive responses by the inadequacy of the NOV and the absence of a formal and timely inspection report(s) that provides basic notice of the nature and basis of the violations alleged. Notwithstanding these inherent deficiencies with the notice provided, the City is committed to working with your agency to ensure regulatory compliance and best practices with respect to its operations. Below are responses to the 13 alleged violations listed in the CUPA's NOV: More than a year ago, the City removed and cleaned up the small amounts of paints and other materials located on a paved location at the City's corporation yard, consistent with the intervention, supervision, and direction of CUPA inspector Kerry Boyle. At that time, the City understood from CUPA staff on site that the spill did not constitute a spill of a size or significance that required further or additional reporting or remedial action. It is our understanding that extensive testing revealed the presence of a limited scope of materials at extremely low levels that are not deemed to be a threat to people or the environment. This information is consistent with the NOV which states that only "low" concentrations of hazardous waste were found beside the pavement and asks that the City conduct a full investigation of the vertical and horizontal extent of such contamination. With due respect, given both the nature of the contaminants and the admittedly "low" levels found in the immediate vicinity, the costs of undertaking a complete investigation far outweigh any likely or even remote risk to human health or the environment. Moreover, it is not clear whether the low levels of substances found were even related to the present alleged spill or whether there were historic operations that could have left residual substances in the adjacent soil, and it is not clear whether the source of the substances can ever be definitively established. The suggestion that the City "investigate for investigation's sake" is neither reasonable nor mandated by the statutory provision cited in your letter. As always, the City is open to further discussion and stands ready to RE: Notice of Violation, City of San Luis Obispo Public Works Dept.Settlement Communication March 16, 2012 Page 3 take appropriate actions to safeguard the community and the environment if and when such additional actions appear warranted by objective data and regulatory provisions. At this point, the City is informed and believes that DTSC, the CUPA, and /or EPA have conducted testing deemed necessary by those agencies to assess the extent of contamination at this site. The City is unclear based on the CUPA's notice what further assessment by the City is required and the City has not been provided with any information sufficient to evaluate the factual or regulatory basis for or extent of further assessment that may be appropriate. The City requests that the CUPA provide the factual records establishing the basis for the conclusion that regulated levels of contamination requiring further assessment or remediation exist at this site and the regulatory basis for further assessment requirements. With that information, the City will determine the nature and extent of further assessment, if any, in accordance with regulatory requirements. 2. The NOV fails to provide basic information sufficient to respond to this request. Notwithstanding that procedural defect, the City is currently undertaking a review of all applicable policies and procedures and will ensure that said policies and procedures currently do, or will be revised to ensure that all wastes shall be transported by a certified hazardous wastes hauler consistent with regulatory requirements. The City will ensure that haulers are registered or permitted by the state and have obtained an ID number consistent with regulatory requirements. 3. The NOV fails to provide basic information sufficient to respond to factual allegations asserted. Notwithstanding that procedural defect, City staff responsible for Corporation Yard oversight advise that manifests and other documents are available for review at any time and copies can be provided at the hearing on March 22, 2012, or at such earlier time as may be requested by the CUPA. 4. The NOV fails to provide basic information sufficient to respond to factual allegations asserted. Notwithstanding that procedural defect, the City is currently undertaking a review of all applicable policies and procedures and will ensure that said policies and procedures currently do, or will be revised to ensure that all wastes are transported and delivered to the appropriate facilities consistent with regulatory requirements. 5. The NOV fails to provide basic information sufficient to respond to factual allegations asserted. Notwithstanding that procedural defect, the City is currently reviewing its labeling process and procedures to ensure that all containers are properly labeled with all required information consistent with regulatory requirements. 6. The NOV fails to provide basic information sufficient to respond to factual allegations asserted. Notwithstanding that procedural defect, City staff is presently reviewing its inspection procedures for hazardous waste storage facilities to ensure compliance consistent with regulatory requirements and will ensure that appropriate documentation RE: Notice of Violation, City of San Luis Obispo Public Works Dept.Settlement Communication March 16, 2012 Page 4 of inspections is created and retained consistent with regulatory requirements. As you can appreciate, the City's Corporate Yard handles a variety of materials and wastes, both hazardous and non - hazardous. It is not a RCRA regulated facility, nor should an allegation of a small and isolated discharge cause it to become such a facility. 7. The NOV fails to provide basic information sufficient to respond to factual allegations asserted. Notwithstanding that procedural defect, the City is currently reviewing its labeling process and procedures to ensure that its hazardous and universal waste containers are properly labeled with all required information consistent with regulatory requirements. 8. The NOV fails to provide basic information sufficient to respond to factual allegations asserted. Notwithstanding that procedural defect, the City is currently reviewing policies and procedures for segregation of regulated wastes to ensure that incompatible wastes are properly separated consistent with regulatory requirements. 9. The NOV fails to provide basic information sufficient to respond to factual allegations asserted. Notwithstanding that procedural defect, the City's Hazardous Materials Business Plan is being evaluated to ensure compliance with the regulations and the City will ensure a complete business plan is on file consistent with regulatory requirements. 10. The NOV fails to provide basic information sufficient to respond to factual allegations asserted. Notwithstanding that procedural defect, employee training is being reviewed to ensure that staff receives the necessary and required training for their positions and documentation of such training will be available for review. 11. The NOV fails to provide basic information sufficient to respond to factual allegations asserted. Notwithstanding that procedural defect, the City's spill response plan is being reviewed to ensure clarity and compliance with reporting requirements to the appropriate agencies. 12. The NOV fails to provide basic infonnation sufficient to respond to factual allegations asserted. Notwithstanding that procedural defect, policies and procedures to identify unknown hazardous wastes are being evaluated to ensure clear policy direction and appropriate use of HazMat Classification contractors to identify and assist in the disposal of unidentified materials. 13. The NOV fails to provide basic information sufficient to respond to factual allegations asserted. Notwithstanding that procedural defect, City staff is inspecting the facility to ensure that the facility is operated to minimize the possibility of tire, explosion or unplanned release of hazardous materials and that policies and procedures are in place and staff appropriately trained to ensure ongoing compliance. RE: Notice of Violation, City of San Luis Obispo Public Works Dept.Settlement Communication March 16, 2012 Page 5 As previously stated, the City strives to ensure its facilities meet all regulatory requirements and is committed to working in cooperation with CUPA staff in the interest of ensuring the health and safety of the community, the environment, and City staff. The City believes that it has a long and positive history in fulfilling its commitments to environmental excellence and working cooperatively with the CUPA. The Ctiy requests that its positive compliance record and open cooperation be given favorable consideration as we move forward to ensure best practices in the current context. If you have any questions or require any additional information regarding the City's efforts, please contact me at (805) 781 -7140 or via email at cdietrickAslocity.org and I will coordinate with appropriate City staff who will ensure that your concerns are addressed to resolve the current NOV. Thank you. Si 766-r ly Christine Dietrick City Attorney CC: Aaron LaBarre Rodger Maggio Timothy McNulty Katie Lichtig Jay Walter Carrie Mattingly Dave Hix Charlie Hines Oilfield Environmental and Compliance, INC. W Kerry Boyle City of San Luis Obispo 919 Palm Street San Luis Obispo, CA 93401 -3218 04 January 2012 RE: SLOCITY CORP YARD Dear Client: Work Order: 1106109 Enclosed is an analytical report for the above referenced project. The samples included in this report were received on 23- Dec -11 15:40 and analyzed in accordance with the attached chain -of- custody. Unless otherwise noted, all analytical testing was accomplished in accordance with the guidelines established in our Quality Assurance Manual, applicable standard operating procedures, and other related documentation. The results in this analytical report are limited to the samples tested and any reproduction thereof must be made in its entirety. If you have any questions regarding this report, please do not hesitate to contact the undersigned. Sincerely, Vanessa Miller Project Manager TEL: (805) 922 -4772 307 Roemer Way, Suite 300, Santa Maria, CA 93454 www.oecusa.com FAX: (805) 925 -3376 Oilfield Environmental and Compliance, INC. City of San Luis Obispo Project: SLOCITY CORP YARD 919 Palm Street Project Number: 25 Prado Rd. San Luis, CA Reported: San Luis Obispo CA, 93401 -3218 Project Manager: Kerry Boyle 04- Jan -12 09:03 ANALYTICAL REPORT FOR SAMPLES Sample ID Laboratory ID Matrix Date Sampled Date Received SSIA 1106109 -01 Solid 23- Dec - 1111:30 23- Dec - 1115:40 SS2A 1106109 -02 Solid 23- Dec - 1111:40 23- Dec - 1115:40 SS3A 1106109 -03 Solid 23- Dec - 1111:45 23- Dec - 1115:40 SS4A 1106109 -04 Solid 23- Dec - 1112:04 23- Dec - 1115:40 SS5A 1106109 -05 Solid 23- Dec - 1112:05 23- Dec - 1115:40 SS6A 1106109 -06 Solid 23- Dec - 1112:07 23- Dec - 1115:40 SS7A 1106109 -07 Solid 23- Dec - 1112:57 23- Dec - 1115:40 SS8A 1106109 -08 Solid 23- Dec - 1112:59 23- Dec - 1115:40 SS9A 1106109 -09 Solid 23- Dec - 1113:01 23- Dec - 1115:40 Oilfield Environmental and Compliance P The results in this report apply to the samples analysed in accordance with the chain of custody document. This analytical report must be reproduced In (is entirety. TEL: (805) 922 -4772 307 Roemer Way, Suite 300, Santa Maria, CA 93454 www.oecusa.com FAX: (805) 925 -3376 Page 2 of 35 Oilfield Environmental and Compliance, INC. City of San Luis Obispo Project: SLOCITY CORP YARD 919 Palm Street Project Number: 25 Prado Rd. San Luis, CA Reported: San Luis Obispo CA, 93401 -3218 Project Manager: Kerry Boyle 04- Jan -12 09:03 SS2A 1106109 -02 (Solid) Analyte Result Reporting Units Dilution Batch Prepared Analyzed Method Notes Limit - Oilfield Environmental and Compliance Surrogate: Phenol -d5 o 137 % v 14 0 -132 A112510 28- Dec -11 29- Dec -11 EPA 8270C Surrogate: Nitrobenzene -d5 118% 7 -135 " Surrogate: 2- Fluorobiphenyl 95.9% 22 -130 Surrogate: 2,4,6- Tribromophenol 90.0% 4 -130 " Surrogate: p- Terphenyl -d14 92.6% 0 -177 " Creosote - 2300 300 10 A112569 30- Dec -11 _ 03- Jan -12 " Surrogate: o- Terphenyl 72.0% 70 -130 " '^ 11 11 SS3A 1106109 -03 (Solid) Analyte Result Reporting Units Dilution Batch Prepared Analyzed Method Notes Limal Oilfield Environmental and Compliance Total Metals by EPA 600017000 Series Methods Antimony ND 24 mg/kg 5 A112534 28 -Dec -11 29 -Dec -11 EPA 601013 Arsenic ND 4.7 „ Barium 56 2.4 Beryllium ND 4.7 „ Cadmium ND 2.4 Chromium 67 2.4 Cobalt 10 N -02 2.4 " Copper 16 2.4 " Lead 7.3 4.7 Mercury ND 0.085 1 A112543 29- Dec -11 29- Dec -11 EPA 7471A Molybdenum ND 4.7 5 A112534 28- Dec -11 29- Dec -11 EPA6010B Nickel 48 2.4 Selenium ND 9.4 Silver ND 4.7 „ Thallium ND 4.7 Vanadium 46 9.4 „ " Zinc 42 2.4 Oilfield Environmental and Compliance The results in this report apply to the samples analyzed in accordance with the chain of custody document. This analytical report must be reproduced in its entirety. TEL: (805) 922 -4772 307 Roemer Way, Suite 300, Santa Maria, CA 93454 WWW.OeCusa.com FAX: (805) 925 -3376 Page 7 of 35 AL Oilfield Environmental and Compliance, INC. City of San Luis Obispo Project: SLOCITY CORP YARD 919 Palm Street Project Number: 25 Prado Rd. San Luis, CA Reported: San Luis Obispo CA, 93401 -3218 Project Manager: Kerry Boyle 04 -Jan-12 09:03 SS5A 1106109 -05 (Solid) Analyte Result Reporting Units Dilution Batch Prepared Analyzed Method Notes Lima Oilfield EnvironmgntpJ and Compliance Surrogate: Phenol-d5 132 % 132% ------- 0 -132 A112510 28- Dec -I1 29- Dec -11 EPA 8270C Surrogate: Nitrobenzene -d5 itrobenznr ene -d5 114% 7 -135 Surrogate: 2- Fluorobiphenyl 97.1% 22 -130 „ Surrogate: 2,4,6- Tribromophenol 85.6% 4 -130 N Surrogate: p- Terphenyl -d14 73.2% 0 -177 Creosote 3700 400 11 10 A112569 30- Dec -11 03- Jan -12 " Surrogate: o- Terphenyl 104% 70 -130 " SS6A 1106109 -06 (Solid) Analyte Result Reporting Units Dilution Batch Prepared Analyzed Method Notes Liml Oilfield Environmental and Compliance Total Metals by EPA 6000 000 Series Methods Antimony Arsenic ND 24 mg/kg 5 A112534 28- Dec -11 29- Dec -1 l EPA 6010B ND 4.8 Barium 70 2.4 Beryllium ND 4.8 Cadmium ND 2.4 Chromium 36 2.4 „ „ Cobalt 5.4 2.4 Copper 10 2.4 Lead 33 4.8 Mercury Molybdenum ND „ 0.093 1 A112543 29 -Dec -11 29 -Dec -11 EPA 7471A Nickel ND 4.8 5 A112534 28 -Dec -11 29- Dec -11 EPA 6010B 52 2.4 ^ Selenium ND 9.5 Silver ND 4.8 Thallium ND 4.8 " Vanadium 29 9.5 „ Zinc 55 2.4 „ Oilfield Environmental and Compliance The results in this report apply to the samples analyzed in accordance with the chain of custody document. This analytical report must be reproduced In lls entirety. 307 Roemer Way, Suite 300, Santa Maria, CA 93454 www.oecusa.com TEL: (805) 922 -4772 FAX: (805) 925 -3376 Page 12 of 35 It 44 Oilfield Environmental and Compliance, INC. City of San Luis Obispo Project: SLOCITY CORP YARD 24 mg/kg 5 A112534 28 -Dec -11 29- Dec -11 EPA 6010B 919 Palm Street Project Number: 25 Prado Rd. San Luis, CA Reported: San Luis Obispo CA, 93401 -3218 Project Manager: Kerry Boyle 04 -Jan-12 09:03 Beryllium SS8A 4,8 Cadmium 1106109 -08 (Solid) 2.4 Analyte Result Reporting Units Dilution Batch Prepared Analyzed Method Notes Cobalt Liml 2.4 " Copper Oilfield EnvironmeTq I and Compliance 2.4 " Lead 13 4.8 Setnivolatile Organic Compounds by-EPA Method 8270C 0.091 1 A112543 29- Dec -11 29- Dec -11 EPA7471A Surrogate: Phenol -l5 122% 0 -132 A112510 28- Dec -11 29- Dec -11 EPA 8270C Surrogate: Nitrobenzene -d5 99.2% ' 7 -135 2.4 Surrogate: 2- Fluorobiphenyl 89.5% 22 -130 " 9.7 Surrogate: 2,4,6- Tribromophenol 93.4% 4 -130 " Surrogate: p- Terphenyl -d14 67.4% 0 -177 4.8 Creosote 230 50 5 A112569 30- Dec -11 03- Jan -12 " Surrogate: o- Terphenyl 90.3% 70 -130 11 11 30- Dec -11 " SS9A 1106109 -09 (Solid) Analyte Result Reporting Units Dilution Batch Prepared Analyzed Method Notes _ Limit I Oilfield Environmental and Compliance Total Metals by EPA 6000!7000 Series Methods Antimony ND 24 mg/kg 5 A112534 28 -Dec -11 29- Dec -11 EPA 6010B Arsenic ND 4.8 „ Barium 130 2.4 n Beryllium ND 4,8 Cadmium ND 2.4 Chromium 180 2.4 N-02, N-03 Cobalt 16 2.4 " Copper 29 2.4 " Lead 13 4.8 Mercury ND 0.091 1 A112543 29- Dec -11 29- Dec -11 EPA7471A Molybdenum ND 4.8 5 A112534 28- Dec -11 29- Dec -I1 EPA6010B Nickel 180 2.4 Selenium ND 9.7 Silver ND 4.8 Thallium ND 4.8 Vanadium 39 9.7 Zinc 110 2.4 Oilfield Environmental and Compliance The results in this report apply to the samples analyzed in accordance with the chain of custody document. This analytical report must be reproduced In its entirety. TEL: (805) 922 -4772 307 Roemer Way, Suite 300, Santa Maria, CA 93454 www.oecusa.com FAX: (805) 925 -3376 Page 17 of 35 i xv- 7MT �NOS�i jig February 17, 2012 Cl ® SM lw _s 0 •- FIRE DEPARTMENT i 2160 Santa Barbara Avenue • San Luis Obispo, CA 93401 - 5240.8051781 -7380 "Courtesy & Service" City of San Luis Obispo Public Works Department Mr. Jay Walter, Director of Public Works 919 Palm Street San Luis Obispo, CA 93401 Via Certifed Mail RE: NOTICE OF VIOLATION AND OFFICE HEARING FOR PUBLIC WORKS DEPARTMENT, 25 PRADO ROAD, SAN LUIS OBISPO, CA 93401 On February 2, 2011, Hazardous Materials Coordinator Kerry Boyle and City Biologist Freddy Otte met Bud Nance at the Corporation Yard for Public Works located at 25 Prado Road. The meeting was in response to a complaint that Corp Yard employees were dumping latex paint, oil base paint, and other industrial coatings onto an area of pavement at the rear of the Corp Yard property. Further investigation revealed that policies and procedures were not followed and that a number of violations were documented. Some of these violations remain uncorrected. You must take appropriate action to achieve compliance within 15 days of receipt of this letter. Within 20 days of the date of this letter, initial each violation below that you have corrected, sign the statement certifying compliance, and return the signed copy to me. Due to the recurring and uncorrected violations, you are scheduled for an Office Hearing at Fire Station 1, 2160 Santa Barbara Avenue, San Luis Obispo, CA on March 22, 2012 at 1:30 PM to discuss required corrective actions, timetables for completion, and potential enforcement actions and penalties. If you do not send in the certification and you do not appear as scheduled, you may be assessed a fine or referred to the Office of the District Attorney for prosecution. The following laws and regulations were witnessed to be in violation at your facility: 1) CA HSC Section 25217.1— No person shall dispose of, or attempt to dispose of, liquid latex paint or oil -based paint in the land or into the waters of the state unless authorized by applicable provisions of the law. Latex and oil base paint, creosote, and industrial coatings were disposed of on pavement at the City Corporation Yard. Soil samples beside the pavement at the paint disposal area confirm low concentrations of hazardous waste. The disposed materials on the pavement have been removed. Provide a work plan to assess the lateral and vertical extent of contamination at this site. The City of San Luis Obispo is committed to include the disabled In all of its services, programs and activities. Telecommunications Device for the Deaf (805) 781 -7410. &k a Public Works NOV Page 2 2) CA HSC §25160(d) A person transporting hazardous waste in a vehicle shall have a manifest in his or her possession while 'trarig,porting the hazardous waste. Hazardous wastes were transported from the City Corporation Yard to the Cold Canyon Landfill Household Hazardous Waste Collection Facility without a Uniform Hazardous Waste Manifest. Provide a hazardous waste manifest for this waste, if available. As a corrective action, develop a written policy that specifies the use of pre- approved hazardous waste transportation companies that will ship hazardous waste off -site using a Uniform Hazardous Waste Manifest. Discontinue the practice of City Employees transporting hazardous waste from the Corp Yard to facilities that are not permitted by the State of CA to accept such wastes. 3) Title 22 CCR §66262.40 — Hazardous waste manifests for all waste streams generated on site have not been provided. Provide hazardous waste manifests for all waste streams from the Corporation Yard for the last three years. 4) CA HSC §25189.5 - Hazardous wastes must be delivered to authorized facilities only. In the event that the waste cannot be delivered to the facility designated on the manifest, the transporter shall contact the generator for instructions and revise the manifest according to the generator's instructions. It was reported that hazardous waste was taken to Cold Canyon Landfill Household Hazardous Waste Collection Facility (HHWCF) without prior authorization from the HHWCF. The City of San Luis Obispo does not qualify to use the facility at Cold Canyon Landfill. Develop a written policy to utilize pre- approved hazardous waste disposal facilities. 5) Title 22 CCR §66262.32 — Containers of hazardous wastes were not properly labeled. Place a completed hazardous waste label on all hazardous waste containers. 6) Title 22 CCR §66265.174 — Weekly inspection of hazardous waste storage areas were not conducted and documented. Develop a written inspection checklist in order to provide documentation of weekly inspections. 7) Title 22 CCR §66262.31 &66262.34— Containers of hazardous waste and Universal Waste are not properly labeled, including Accumulation Start Date. Obtain compliant labels and place completed hazardous waste and Universal Waste labels on all containers. 8) Title 22 CCR §66264.177 (c). Special Requirements for Incompatible Wastes. Incompatible hazardous wastes were not separated from other hazardous wastes /materials so as to protect them by means of a dike, berm, wall, or other device. Properly separate and store incompatible wastes. 9) Title 19 CCR §2729 and HSC §25503.5 — Hazardous Materials Business Plan is not complete and correct. Provide a complete and updated plan via the on -line EZ Submit Hazardous Materials Business Plan Portal: http: www.ersubmits._ logo � ore slo home.htm. Public Works NOV Page 2 2) CA HSC §25160(d) A person transporting hazardous waste in a vehicle shall have a manifest in his or her possession while 'trarig,porting the hazardous waste. Hazardous wastes were transported from the City Corporation Yard to the Cold Canyon Landfill Household Hazardous Waste Collection Facility without a Uniform Hazardous Waste Manifest. Provide a hazardous waste manifest for this waste, if available. As a corrective action, develop a written policy that specifies the use of pre- approved hazardous waste transportation companies that will ship hazardous waste off -site using a Uniform Hazardous Waste Manifest. Discontinue the practice of City Employees transporting hazardous waste from the Corp Yard to facilities that are not permitted by the State of CA to accept such wastes. 3) Title 22 CCR §66262.40 — Hazardous waste manifests for all waste streams generated on site have not been provided. Provide hazardous waste manifests for all waste streams from the Corporation Yard for the last three years. 4) CA HSC §25189.5 - Hazardous wastes must be delivered to authorized facilities only. In the event that the waste cannot be delivered to the facility designated on the manifest, the transporter shall contact the generator for instructions and revise the manifest according to the generator's instructions. It was reported that hazardous waste was taken to Cold Canyon Landfill Household Hazardous Waste Collection Facility (HHWCF) without prior authorization from the HHWCF. The City of San Luis Obispo does not qualify to use the facility at Cold Canyon Landfill. Develop a written policy to utilize pre- approved hazardous waste disposal facilities. 5) Title 22 CCR §66262.32 — Containers of hazardous wastes were not properly labeled. Place a completed hazardous waste label on all hazardous waste containers. 6) Title 22 CCR §66265.174 — Weekly inspection of hazardous waste storage areas were not conducted and documented. Develop a written inspection checklist in order to provide documentation of weekly inspections. 7) Title 22 CCR §66262.31 &66262.34— Containers of hazardous waste and Universal Waste are not properly labeled, including Accumulation Start Date. Obtain compliant labels and place completed hazardous waste and Universal Waste labels on all containers. 8) Title 22 CCR §66264.177 (c). Special Requirements for Incompatible Wastes. Incompatible hazardous wastes were not separated from other hazardous wastes /materials so as to protect them by means of a dike, berm, wall, or other device. Properly separate and store incompatible wastes. 9) Title 19 CCR §2729 and HSC §25503.5 — Hazardous Materials Business Plan is not complete and correct. Provide a complete and updated plan via the on -line EZ Submit Hazardous Materials Business Plan Portal: http: www.ersubmits._ logo � ore slo home.htm. Public Works NOV Page 3 10) 49 CFR §172.704; Title 22 CCR §66273.36, and Title 22 CCR §66265.16 —Training Personnel. Specific, job related training has not been provided to employees. These code sections r reference requirements that facility personnel be given specific training, including the signing of Uniform Hazardous Waste Manifests. The facility owner or operator is also responsible for maintaining training documents and records at the facility. California Compliance School is an i excellent resource for this training. Provide documentation of specified employee training. 11) HSC §25507 — Handlers, any employees, authorized representatives, agents or designees of handlers shall, upon discovery, immediately report any release or threatened release of Hazardous materials. Develop a written policy to immediately notify the City Fire Department upon a release of hazardous ,materials to the environment. 12) Title 22 CCR §66262.11— No Hazardous Waste Determination was made for unknown /unlabeled containers. Perform and document a determination on all potential hazardous wastes. Develop a written policy to identify unknown materials, using a contractor to conduct HazCat Classification on each unknown that would allow the hazardous material /waste to then be properly profiled and disposed of. 13) Title 22 CCR §66265.31— Facility was not maintained and operated to minimize the possibility of a fire, explosion, or any unplanned sudden or non - sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water which could threaten human health or the environment. Further assessment of soil contamination discovered at the location where paint and industrial coatings were emptied onto asphalt will be necessary to delineate the vertical and lateral extent of soil contamination. Please submit a work plan that addresses these concerns. Creosote is a Federally listed hazardous waste under the U -List (U051). If you have questions regarding this Notice of Violation please contact me at (805) 781 -7383. Sincerely, D. Kerry Boyle Hazardous Materials Coordinator Participating Agency for the Certified Unified Program Agency cc: Christine Dietrick, S. L. 0. City Attorney Aaron LaBarre, Supervisor — San Luis Obispo County Certified Unified'Program Agency Bud Nance, Wastewater Collections Supervisor— S. L. 0. City Public Works Department EXHIBIT B APPLICABLE STATUTES AND REGULATIONS CALIFORNIA CODES HEALTH AND SAFETY CODE SECTION 25404.1.1. 25404.1.1. (a) If the unified program agency determines that a person has committed, or is committing, a violation of any law, regulation, permit, information request, order, variance, or other requirement that the UPA is authorized to enforce or implement pursuant to this chapter, the UPA may issue an administrative enforcement order requiring that the violation be corrected and imposing an administrative penalty, in accordance with the following: (1) Except as provided in paragraph (5), if the order is for a violation of Chapter 6.5 (commencing with Section 25100), the violator shall be subject to the applicable administrative penalties provided by that chapter. (2) If the order is for a violation of Chapter 6.7 (commencing with Section 25280), the violator shall be subject to the applicable civil penalties provided in subdivisions (a), (b), (c), and (e) of Section 25299. (3) If the order is for a violation of Article 1 (commencing with Section 25500) of Chapter 6.95, the violator shall be subject to a penalty that is consistent with the administrative penalties imposed pursuant to Section 25514.5. (4) If the order is for a violation of Article 2 (commencing with Section 25531) of Chapter 6.95, the violator shall be subject to a penalty that is consistent with the administrative penalties imposed pursuant to Section 25540 or 25540.5. (5) If the order is for a violation of Section 25270.5, the violator shall be liable for a penalty of not more than five thousand dollars ($5,000) for each day on which the violation continues. If the violator commits a second or subsequent violation, a penalty of not more than ten thousand dollars ($10,000) for each day on which the violation continues may be imposed. (b) In establishing a penalty amount and ordering that the violation be corrected pursuant to this section, the UPA shall take into consideration the nature, circumstances, extent, and gravity of the violation, the violator's past and present efforts to prevent, abate, or clean up conditions posing a threat to the public health or safety or the environment, the violator's ability to pay the penalty, and the deterrent effect that the imposition of the penalty would have on both the violator and the regulated community. (c) Any order issued pursuant to this section shall be served by personal service or certified mail and shall inform the person served of the right to a hearing. If the UPA issues an order pursuant to this section, the order shall state whether the hearing procedure specified in paragraph (2) of subdivision (e) may be requested by the person receiving the order. (d) Any person served with an order pursuant to this section who has been unable to resolve any violation with the UPA, may within 15 days after service of the order, request a hearing pursuant to subdivision (e) by filing with the UPA a notice of defense. The notice shall be filed with the office that issued the order. A notice of defense shall be deemed filed within the 15 -day period provided by this subdivision if it is postmarked within that 15 -day period. If no notice of defense is filed within the time limits provided by this subdivision, the order shall become final. Page 1 of 3 CALIFORNIA CODES HEALTH AND SAFETY CODE SECTION 25404.1.1. (e) Except as provided in subparagraph (B) of paragraph (2), a person requesting a hearing on an order issued by the UPA under this section may select the hearing officer specified in either paragraph (1) or (2) in the notice of defense filed with the UPA pursuant to subdivision (d). If a notice of defense is filed but no hearing officer is selected, the UPA may select the hearing officer. Within 90 days of receipt of the notice of defense by the UPA, the hearing shall be scheduled using one of the following: (1) An administrative law judge of the Office of Administrative Hearings of the Department of General Services, who shall conduct the hearing in accordance with Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title 2 of the Government Code, and the UPA shall have all the authority granted to an agency by those provisions. (2) (A) A hearing officer designated by the UPA, who shall conduct the hearing in accordance with Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title 2 of the Government Code, and the UPA shall have all the authority granted to an agency by those provisions. When a hearing is conducted by a UPA hearing officer pursuant to this paragraph, the UPA shall issue a decision within 60 days after the hearing is conducted. Each hearing officer designated by a UPA shall meet the requirements of Section 11425.30 of the Government Code and any other applicable restriction. (B) A UPA, or a person requesting a hearing on an order issued by a UPA may select the hearing process specified in this paragraph in a notice of defense filed pursuant to subdivision (d) only if the UPA has, as of the date the order is issued pursuant to subdivision (c), selected a designated hearing officer and established a program for conducting a hearing in accordance with this paragraph. (f) The hearing decision issued pursuant to paragraph (2) of subdivision (e) shall be effective and final upon issuance by the UPA. A copy of the decision shall be served by personal service or by certified mail upon the party served with the order, or their representative, if any. (g) Any provision of an order issued under this section, except the imposition of an administrative penalty, shall take effect upon issuance by the UPA if the UPA finds that the violation or violations of law associated with that provision may pose an imminent and substantial endangerment to the public health or safety or the environment. A request for a hearing shall not stay the effect of that provision of the order pending a hearing decision. However, if the UPA determines that any or all provisions of the order are so related that the public health or safety or the environment can be protected only by immediate compliance with the order as a whole, the order as a whole, except the imposition of an administrative penalty, shall take effect upon issuance by the UPA. A request for a hearing shall not stay the effect of the order as a whole pending a hearing decision. (h) A decision issued pursuant to paragraph (2) of subdivision (e) may be reviewed by a court pursuant to Section 11523 of the Government Code. In all proceedings pursuant to this section, the court shall uphold the decision of the UPA if the decision is CALIFORNIA CODES HEALTH AND SAFETY CODE SECTION 25404.1.1. based upon substantial evidence in the record as a whole. The filing of a petition for writ of mandate shall not stay any action required pursuant to this chapter or the accrual of any penalties assessed pursuant to this chapter. This subdivision does not prohibit the court from granting any appropriate relief within its jurisdiction. (i) All administrative penalties collected from actions brought by a UPA pursuant to this section shall be paid to the UPA that imposed the penalty, and shall be deposited into a special account that shall be expended to fund the activities of the UPA in enforcing this chapter. (j) The UPA shall consult with the district attorney, county counsel, or city attorney on the development of policies to be followed in exercising the authority delegated pursuant to this section as it relates to the authority of the UPA to issue orders. (k) (1) A unified program agency may suspend or revoke any unified program facility permit, or an element of a unified program facility permit, for not paying the permit fee or a fine or penalty associated with the permit in accordance with the procedures specified in this subdivision. (2) If a permittee does not comply with a written notice from the unified program agency to the permittee to make the payments specified in paragraph (1) by the required date provided in the notice, the unified program agency may suspend or revoke the permit or permit element. If the permit or permit element is suspended or revoked, the permittee shall immediately discontinue operating that facility or function of the facility to which the permit element applies until the permit is reinstated or reissued. (3) A permittee may request a hearing to appeal the suspension or revocation of a permit or element of a permit pursuant to this subdivision by requesting a hearing using the procedures provided in subdivision (d). (1) This section does not do any of the following: (1) Otherwise affect the authority of a UPA to take any other action authorized by any other provision of law, except the UPA shall not require a person to pay a penalty pursuant to this section and pursuant to a local ordinance for the same violation. (2) Restrict the power of a city attorney, district attorney, county counsel, or the Attorney General to bring, in the name of the people of California, any criminal proceeding otherwise authorized by law. (3) Prevent the UPA from cooperating with, or participating in, a proceeding specified in paragraph (2). CALIFORNIA CODES HEALTH AND SAFETY CODE SECTION 25187 25187. (a) (1) The department or a unified program agency, in accordance with subdivision (1), may issue an order requiring that the violation be corrected and imposing an administrative penalty, for any violation of this chapter or any permit, rule, regulation, standard, or requirement issued or adopted pursuant to this chapter, whenever the department or Unified Program Agency determines that a person has violated, is in violation of, or threatens, as defined in subdivision (e) of Section 13304 of the Water Code, to violate, this chapter or Chapter 6.8 (commencing with Section 25300), or any permit, rule, regulation, standard, or requirement issued or adopted pursuant to this chapter or Chapter 6.8 (commencing with Section 25300). (2) In an order proposing a penalty pursuant to this section, the department or Unified Program Agency shall take into consideration the nature, circumstances, extent, and gravity of the violation, the violator's past and present efforts to prevent, abate, or clean up conditions posing a threat to the public health or safety or the environment, the violator's ability to pay the proposed penalty, and the prophylactic effect that the imposition of the proposed penalty would have on both the violator and the regulated community as a whole. (b) The department or a unified program agency, in accordance with subdivision (1), may issue an order requiring corrective action whenever the department or Unified Program Agency determines that there is or has been a release, as defined in Chapter 6.8 (commencing with Section 25300), of hazardous waste or constituents into the environment from a hazardous waste facility. (1) In the case of a release of hazardous waste or constituents into the environment from a hazardous waste facility that is required to obtain a permit pursuant to Article 9 (commencing with Section 25200), the department shall pursue the remedies available under this chapter, including the issuance of an order for corrective action pursuant to this section, before using the legal remedies available pursuant to Chapter 6.8 (commencing with Section 25300), except in any of the following circumstances: (A) Where the person who is responsible for the release voluntarily requests in writing that the department issue an order to that person to take corrective action pursuant to Chapter 6.8 (commencing with Section 25300). (B) Where the person who is responsible for the release is unable to pay for the cost of corrective action to address the release. For purposes of this subparagraph, the inability of a person to pay for the cost of corrective action shall be determined in accordance with the policies of the Environmental Protection Agency for the implementation of Section 9605 of Title 42 of the United States Code. (C) Where the person responsible for the release is unwilling to perform corrective action to address the release. For purposes of this subparagraph, the unwillingness of a person to take corrective action shall be determined in accordance with the policies of the Environmental Protection Agency for the implementation of Section 9605 of Title 42 of the United States Code. (D) Where the release is part of a regional or multisite groundwater contamination problem that.cannot, in its entirety, be addressed using the legal remedies available pursuant to this chapter and for which other releases that are part of the regional or multisite groundwater contamination problem are being addressed using the legal remedies available pursuant to.. Chapter 6.8 (commencing with Section 25300). (E) Where an order for corrective action has already been issued against the person responsible for the release, or the department and the person responsible for the release have, prior to January 1, 1996, entered into an agreement to address the required cleanup of the release pursuant to Chapter 6.8 (commencing with Section 25300). CALIFORNIA CODES HEALTH AND SAFETY CODE SECTION 25187 (F) Where the hazardous waste facility is owned or operated by the federal government. (2) The order shall include a requirement that the person take corrective action with respect to the release of hazardous waste or constituents, abate the effects thereof, and take any other necessary remedial action. (3) If the order requires corrective action at a hazardous waste facility, the order shall require that corrective action be taken beyond the facility boundary, where necessary to protect human health or the environment. (4) The order shall incorporate, as a condition of the order, any applicable waste discharge requirements issued by the State Water Resources Control Board or a California regional water quality control board, and shall be consistent with all applicable water quality control plans adopted pursuant to Section 13170 of the Water Code and Article 3 (commencing with Section 13240) of Chapter 4 of Division 7 of the Water Code and state policies for water quality control adopted pursuant to Article 3 (commencing with Section 13140) of Chapter 3 of Division 7 of the Water Code existing at the time of the issuance of the order, to the extent that the department or Unified Program Agency determines that those plans and policies are not less stringent than this chapter and regulations adopted pursuant to this chapter. The order may include any more stringent requirement that the department or Unified Program Agency determines is necessary or appropriate to protect water quality. (5) Persons who are subject to an order pursuant to this subdivision include present and prior owners, lessees, or operators of the property where the hazardous waste is located, present or past generators, storers, treaters, transporters, disposers, and handlers of hazardous waste, and persons who arrange, or have arranged, by contract or other agreement, to store, treat, transport, dispose of, or otherwise handle hazardous waste. (6) For purposes of this subdivision, "hazardous waste facility" includes the entire site that is under the control of an owner or operator engaged in the management of hazardous waste. (c) Any order issued pursuant to this section shall be served by personal service or certified mail and shall inform the person so served of the right to a hearing. If the Unified Program Agency issues the order pursuant to this section, the order shall state whether the hearing procedure specified in paragraph (2) of subdivision (f) may be requested by the person receiving the order. (d) Any person served with an order pursuant to this section who has been unable to resolve any violation or deficiency on an informal basis with the department or Unified Program Agency may, within 15 days after service of the order, request a hearing pursuant to subdivision (e) or (f) by filing with the department or Unified Program Agency a notice of defense. The notice shall be filed with the office that issued the order. A notice of defense shall be deemed filed within the 15 -day period provided by this subdivision if it is postmarked within that 15 -day period. If no notice of defense is filed within the time limits provided by this subdivision, the order shall become final. (e) Any hearing requested on an order issued by the department shall be conducted within 90 days after receipt of the notice of defense by an administrative law judge of the Office of Administrative Hearings of the Department of General Services in accordance with Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title 2 of the Government Code, and the department shall have all the authority granted to an agency by those provisions. (f) Except as provided in subparagraph (B) of paragraph (2), a person requesting a hearing on an order issued by a unified program agency may select the hearing process specified in either paragraph (1) or (2) in the notice of defense filed with the Unified Program Agency pursuant to subdivision (d). Within 90 days of receipt of the notice of defense by the Unified Program Agency, the hearing shall be conducted using one of the following procedures: (1) An administrative law judge of the Office of Administrative Hearings of the Department of Page 2 of 8 CALIFORNIA CODES HEALTH AND SAFETY CODE SECTION 25187 General Services shall conduct the hearing in accordance with Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title 2 of the Government Code. (2) (A) A hearing officer designated by the Unified Program Agency shall conduct the hearing in accordance with Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title 2 of the Government Code, and the Unified Program Agency shall have all the authority granted to an agency by those provisions. When a hearing is conducted by a unified program agency pursuant to this paragraph, the Unified Program Agency shall, within 60 days of the hearing, issue a decision. (B) A person requesting a hearing on an order issued by a unified program agency may select the hearing process specified in this paragraph in a notice of defense filed pursuant to subdivision (d) only if the Unified Program Agency has, as of the date the order is issued pursuant to subdivision (c), selected a designated hearing officer and established a program for conducting a hearing in accordance with this paragraph. (g) The hearing decision issued pursuant to subdivision (f) shall be effective and final upon issuance. Copies of the decision shall be served by personal service or by certified mail upon the party served with the order and upon other persons who appeared at the hearing and requested a copy. (h) Any provision of an order issued under this section, except the imposition of an administrative penalty, shall take effect upon issuance by the department or Unified Program Agency if the department or Unified Program Agency finds that the violation or violations of law associated with that provision may pose an imminent and substantial endangerment to the public health or safety or the environment, and a request for a hearing shall not stay the effect of that provision of the order pending a hearing decision. However, if the department or Unified Program Agency determines that any or all provisions of the order are so related that the public health or safety or the environment can be protected only by immediate compliance with the order as a whole, then the order as a whole, except the imposition of an administrative penalty, shall take effect upon issuance by the department or Unified Program Agency. A request for a hearing shall not stay the effect of the order as a whole pending a hearing decision. (i) A decision issued pursuant to this section may be reviewed by the court pursuant to Section 11523 of the Government Code. In all proceedings pursuant to this section, the court shall uphold the decision of the department or Unified Program Agency if the decision is based upon substantial evidence in the whole record. The filing of a petition for writ of mandate shall not stay any action required pursuant to this chapter or the accrual of any penalties assessed pursuant to this chapter. This subdivision does not prohibit the court from granting any appropriate relief within its jurisdiction. (j) All administrative penalties collected from actions brought by the department pursuant to this section shall be placed in a separate subaccount in the Toxic Substances Control Account and shall be available only for transfer to the Site Remediation Account or the Expedited Site Remediation Trust Fund and for expenditure by the department upon appropriation by the Legislature. (k) All administrative penalties collected from an action brought by a unified program agency pursuant to this section shall be paid to the Unified Program Agency that imposed the penalty, and shall be deposited into a special account that shall be expended to fund the activities of the Unified Program Agency in enforcing this chapter pursuant to Section 25180. (1) The authority granted under this section to a unified program agency is limited to both of the following: (1) The issuance of orders to impose penalties and to correct violations of the requirements of this chapter and its implementing regulations, only when the violations are violations of requirements applicable to hazardous waste generators and persons operating pursuant to a Page 3 of 8 CALIFORNIA CODES HEALTH AND SAFETY CODE SECTION 25187 permit -by -rule, conditional authorization, or conditional exemption, when the violations occur at a unified program facility within the jurisdiction of the CUPA. (2) The issuance of orders to require corrective action when there has been a release of hazardous waste or constituents only when the Unified Program Agency is authorized to do so pursuant to Section25404.1. (m) The CUPA shall annually submit a summary report to the department on the status of orders issued by the unified program agencies under this section and Section 25187.1. (n) The CUPA shall consult with the district attorney for the county on the development of policies to be followed in exercising the authority delegated pursuant to this section and Section 25187.1, as they relate to the authority of unified program agencies to issue orders. (o) The CUPA shall arrange to have appropriate legal representation in administrative hearings that are conducted by an administrative law judge of the Office of Administrative Hearings of the Department of General Services, and when a decision issued pursuant to this section is appealed to the superior court. (p) The department may adopt regulations to implement this section and paragraph (2) of subdivision (a) of Section 25187.1 as they relate to the authority of unified program agencies to issue orders. The regulations shall include, but not be limited to, all of the following requirements: (1) Provisions to ensure coordinated and consistent application of this section and Section 25187.1 when both the department and the Unified Program Agency have or will be issuing orders under one or both of these sections at the same facility. (2) Provisions to ensure that the enforcement authority granted to the unified program agencies will be exercised consistently throughout the state. (3) Minimum training requirements for staff of the Unified Program Agency relative to this section and Section 25187.1. (4) Procedures to be followed by the department to rescind the authority granted to a unified program agency under this section and Section 25187.1, if the department finds that the Unified Program Agency is not exercising that authority in a manner consistent with this chapter and Chapter 6.11 (commencing with Section 25404) and the regulations adopted pursuant thereto. (q) Except for an enforcement action taken pursuant to this chapter or Chapter 6.8 (commencing with Section 25300), this section does not otherwise affect the authority of a local agency to take any action under any other provision of law. 25187.1. (a) (1) If the department or a unified program agency authorized pursuant to paragraph (2) determines, upon receipt of any information, that the presence of any hazardous waste at a facility or site at which hazardous waste is, or has been, stored, treated, or disposed of, or the release of any hazardous waste from the facility or site may present a substantial hazard to human health or the environment, the department or authorized unified program agency may issue an order requiring the owner or operator of the facility or site to conduct monitoring, testing, analysis, and reporting with respect to the facility or site which the department or authorized unified program agency deems reasonable to ascertain the nature and extent of the hazard. (2) The authority granted under this section to a unified program agency is limited to the issuance of orders pursuant to paragraph (1) to a unified program facility within the jurisdiction of the CUPA, and is subject to Section 25404.1. (b) If a facility or site subject to subdivision (a) is not in operation at the time the determination is made and the department finds that the owner of the facility or site, could not reasonably be expected to have actual knowledge of the presence of hazardous waste at the facility or site and of its potential for release, the department may issue an order requiring the most recent Page 4 of 8 CALIFORNIA CODES HEALTH AND SAFETY CODE SECTION 25187 previous owner or operator of the facility or site who could reasonably be expected to have the actual knowledge to carry out the actions specified in subdivision (a). (c) Any order issued pursuant to subdivision (a) or (b) shall require the person to whom the order is issued to submit to the department or authorized unified program agency, within 30 days from the issuance of the order, a proposal for carrying out the required monitoring, testing, analysis, and reporting. The department or authorized unified program agency may, after providing the person with an opportunity to confer with the department or authorized unified program agency concerning the proposal, require the person to carry out the monitoring, testing, analysis, and reporting in accordance with the proposal, and with any modifications in the proposal as the department or authorized unified program agency deems reasonable to ascertain the nature and extent of the hazard. (d) If the department or authorized unified program agency determines that there is no owner or operator specified in subdivision (a) or (b) to conduct monitoring, testing, analysis, or reporting satisfactory to the department or authorized unified program agency, if the department or authorized unified program agency deems the action carried out by an owner or operator is unsatisfactory, or if the department or authorized unified program agency cannot initially determine that there is an owner or operator specified in subdivision (a) or (b) who is able to conduct monitoring, testing, analysis, or reporting, the department or authorized unified program agency may do either of the following: (1) Conduct monitoring, testing, or analysis, or any combination of these actions, which the department or authorized unified program agency deems reasonable, to ascertain the nature and extent of the hazard associated with the site. (2) Authorize a local authority or other person to carry out the action, and require, by order, the owner or operator specified in subdivision (a) or (b) to reimburse the department or authorized unified program agency or other authority or person for the costs of the activity. (e) The department or authorized unified program agency shall not issue an order pursuant to this section which requires the department or authorized unified program agency to be reimbursed for the costs of any action carried out by the department or authorized unified program agency to conduct monitoring, testing, and analysis to determine the results of the actions carried out by a person pursuant to an order issued pursuant to subdivision (a) or (b). (f) For purposes of carrying out this section, the department, an authorized unified program agency, any other local agency, or other person authorized under paragraph (2) of subdivision (d), may take action pursuant to Section 25185. 25187.2. If a removal or remedial action order issued pursuant to Section 25187 to a potentially responsible party requires a person to take corrective action with respect to hazardous waste, that person shall pay for oversight of the removal or remedial action. This section does not prohibit the department or unified program agency from assessing any other penalty or recovering any costs for oversight of a removal or remedial action, pursuant to any other provision. Nothing in this section limits the due process requirements of Section 25187. 25187.5. (a) If corrective action is not taken on or before the date specified in an order issued pursuant to Section 25187, or if in the judgment of the department immediate corrective action is necessary to remedy or prevent an imminent substantial danger to the public health, domestic livestock, wildlife, or the environment, the department may take, or contract for the taking of, that corrective action and recover the cost thereof as provided in subdivision (c). (b) (1) The department may expend up to one hundred thousand dollars ($100,000) in a 12- month period of available moneys in the Hazardous Waste Control Account in the General Fund to take corrective action pursuant to subdivision (a). Page 5 of 8 CALIFORNIA CODES HEALTH AND SAFETY CODE SECTION 25187 (2) Notwithstanding any other provision of law, the department may enter into written contracts for corrective action taken or to be taken pursuant to subdivision (a). (3) Notwithstanding any other provision of law, the department may enter into oral contracts, not to exceed ten thousand dollars ($10,000) in obligation, when in the judgment of the department immediate corrective action is necessary to remedy or prevent an imminent substantial danger to the public health, domestic livestock, wildlife, or the environment. (4) The contracts entered into pursuant to this subdivision, whether written or oral, may include provisions for the rental of tools or equipment, either with or without operators furnished, and for the furnishing of labor and materials necessary to accomplish the work. (5) Any contract entered into by the department pursuant to this subdivision shall be exempt from approval by the Department of General Services pursuant to Section 10295 of the Public Contract Code. (c) If corrective action is taken pursuant to subdivision (a), the person or persons who were subject to the order issued pursuant to Section 25187, or any person or persons whose violation resulted in the imminent and substantial danger to health or the environment shall be liable to the department for the reasonable cost actually incurred in taking corrective action. In addition, the person or persons shall be liable to the department for administrative costs in an amount equal to 10 percent of the reasonable cost actually incurred or five hundred dollars ($500), whichever is greater. The amount of cost determined pursuant to this subdivision shall be recoverable in a civil action by the department, in addition to any other fees or penalties. Persons who may be liable pursuant to this subdivision shall include, but not be limited to, present or prior owners, lessees, or operators of the property where the hazardous waste is located and producers, transporters or disposers of the hazardous waste. (d) Neither the department, nor any person authorized by the department to enter upon any lands for the purpose of taking corrective action pursuant to subdivision (a) is liable to civil or criminal action for trespass for any acts that are necessary to carry out the corrective action. (e) This section does not impose any new liability associated with acts that occurred before January 1, 1981, if the acts were not in violation of existing law or regulations at the time they occurred. 25187.6. (a) If an authorized agent of the department has probable cause to believe that any hazardous waste, or any material which the authorized agent reasonably believes to be a hazardous waste, is stored, transported, disposed of, or handled in violation of this chapter or in a manner that will constitute a violation of this chapter, and that the violation may threaten public health and safety, or the environment, the agent may issue an order of quarantine by affixing a tag or other appropriate marking to the container containing, or to the vehicle transporting, the hazardous waste. (b) Upon issuing an order of quarantine pursuant to subdivision (a), the authorized agent shall notify the person who owns the hazardous waste, or the owner or lessee of the vehicle in which the wastes are transported, of all of the following: (1) The hazardous waste has been subject to a quarantine order because the hazardous waste is, or is suspected of being, stored, transported, disposed of, or handled in violation of this chapter. (2) No person shall remove, transfer, or dispose of the hazardous waste until permission for removal, transfer, or disposal is given by an authorized agent of the department or by a court. (3) The person so notified may request, and shall be granted, an immediate hearing before a person designated by the director to review the validity of the authorized agent's order. For purposes of this section, an immediate hearing shall be held within 24 hours after a hearing is requested by the person subject to the order. Page 6 of 8 CALIFORNIA CODES HEALTH AND SAFETY CODE SECTION 25187 (c) Any order of quarantine issued pursuant to subdivision (a) shall take effect upon issuance and shall remain effective for 30 days thereafter, until an authorized agent removes the quarantine order pursuant to subdivision (d), or until the quarantine order is revoked pursuant to a hearing conducted in accordance with paragraph (3) of subdivision (b), whichever event occurs first. (d) If an authorized agent of the department determines that a hazardous waste subject to a quarantine order is not being stored, handled, transported, or disposed of in violation of this chapter, or does not threaten public health and safety or the environment, the authorized agent shall revoke the order of quarantine. - (e) If an authorized agent of the department has probable cause to believe that a hazardous waste subject to a quarantine order will, or is likely to, be removed, transferred or disposed of in violation of this section, the authorized agent may remove the hazardous waste to a place of safekeeping. (f) A hazardous waste in transit for which a quarantine order has been issued pursuant to subdivision (a) shall be stored or held at one of the following locations, which the authorized agent determines will represent the least risk to the public health and safety or the environment: (1) The facility owned or operated by the producer of the waste, except when the producer is located outside the state. (2) The transporter's yard; facility; or terminal. (3) The treatment, storage, or disposal facility to which the hazardous waste is to be transported. (4) Any other site designated by the authorized agent. (g) All fees for storage and any other expenses incurred in carrying out subdivision (e) or (f) shall be a charge against the person who owns the hazardous waste or the owner or lessee of the vehicle in which the wastes are transported. (h) For purposes of this section, "authorized agent of the department" includes any representative of a local officer or agency authorized to enforce this chapter pursuant to subdivision (a) of Section 25180. 25187.8. (a) An authorized representative of the department or local officer or agency authorized to enforce this chapter pursuant to subdivision (a) of Section 25180, who, in the course of conducting an inspection of a facility, detects a minor violation of any permit conditions, rule, regulation, standard, or other requirement, shall issue a notice to comply before leaving the site in which the minor violation is alleged to have occurred. (b) A facility which receives a notice to comply pursuant to subdivision (a) shall have not more than 30 days from the date of receipt of the notice to comply in which to achieve compliance with the permit conditions, rule, regulation, standard, or other requirement cited on the notice to comply. Within five working days of achieving compliance, an appropriate person who is an owner or operator of, or an employee at, the facility shall sign the notice to comply and return it to the department representative or to the authorized local officer or agency, as the case may be, which states that the facility has complied with the notice to comply. A false statement that compliance has been achieved is a violation of this chapter pursuant to Section 25191. (c) A single notice to comply shall be issued for all minor violations cited during the same inspection and the notice to comply shall separately list each of the cited minor violations and the manner in which each of the minor violations may be brought into compliance. (d) A notice to comply shall not be issued for any minor violation which is corrected immediately in the presence of the inspector. Immediate compliance in that manner may be noted in the inspection report, but the facility shall not be subject to any further action by the department representative or by the authorized local officer or agency. Page 7 of 8 CALIFORNIA CODES HEALTH AND SAFETY CODE SECTION 25187 (e) Except as otherwise provided in subdivision (g), a notice to comply shall be the only means by which the department representative or the authorized local officer or agency shall cite a minor violation. The department representative or the authorized local officer or agency shall not take any other enforcement action specified in this chapter against a facility which has received a notice to comply if the facility complies with this section. (f) If a facility that receives a notice to comply pursuant to subdivision (a) disagrees with one or more of the alleged violations listed on the notice to comply, the owner shall give the person who issued the notice to comply written notice of disagreement. If the issuing agency takes administrative enforcement action on the basis of the disputed violation, that action may be appealed in the same manner as for other alleged violations under subdivisions (d) to Q), inclusive, of Section 25187. (g) (1) Notwithstanding any other provision of this section, if a facility fails to comply with a notice to comply within the prescribed period, or if the department, or an authorized local officer or agency, determines that the circumstances surrounding a particular minor violation or combination of minor violations are such that immediate enforcement is warranted to prevent harm to the public health or safety or to the environment, the department or authorized local officer or agency may take any needed enforcement action authorized by this chapter. (2) Notwithstanding any other provision of this section, if the department, or an authorized local officer or agency, determines that the circumstances surrounding a particular minor violation or combination of minor violations are such that the assessment of a civil penalty pursuant to this chapter is warranted or is required by the federal act, in addition to issuance of a notice to comply, the department or authorized local officer or agency shall assess that civil penalty in accordance with this chapter, if the department or authorized local officer or agency makes written findings that set forth the basis for the department's or authorized local officer's or agency's determination. (h) A notice to comply issued to a facility pursuant to this section shall contain an explicit statement that the facility may be subject to reinspection at any time by the department or authorized local officer or agency that issued the notice to comply. Nothing in this section shall be construed as preventing the reinspection of a facility to ensure compliance with this chapter or to ensure that minor violations cited in a notice to comply have been corrected and that the facility is in compliance with this chapter. (i) Nothing in this section shall be construed as preventing the department, or authorized local officer or agency, on a case -by -case basis, from requiring a facility to submit reasonable and necessary documentation to support the facility's claim of compliance pursuant to subdivision (b). Page 8 of 8 California Code of Regulations Term 22 CCR § 66265.31 Page 1 of 1 California Office of Home Most Recent Updates Search Help Administrative Law Welcome to the online source for the California Code of Regulations 22 CA ADC § 66265.31 § 66265.31. Maintenance and Operation of Facility. Cal. Admin. Code tit. 22, § 66265.31 Barclays Official California Code of Regulations Currentness Title 22. Social Security Division 4.5. Environmental Health Standards for the Management of Hazardous Waste Chapter 15. Interim Status Standards for Owners and Operators of Hazardous Waste Transfer, Treatment, Storage, and Disposal Facilities 19 Article 3. Preparedness and Prevention y§ 66265.31. Maintenance and Operation of Facility. Facilities shall be maintained and operated to minimize the possibility of a fire, explosion, or any unplanned sudden or non - sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water which could threaten human health or the environment. Note: Authority cited: Sections 208, 25150 and 25159, Health and Safety Code. Reference: Sections 25159 and 25159.5, Health and Safety Code; 40 CFR Section 265.31. HISTORY 1. New section filed 5- 24 -91; operative 7 -1 -91 (Register 91, No. 22). 22 CCR § 66265.3 1, -*- 22 CA ADC § 66265 - il►..F 31 -w This database is current through 3/21/14 Register-2014, No. 12 END OF DOCUMENT Y Term 4, © 2014 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. Docs In Sequence Table of Contents Westlaw, part of Thomson Reuters © 2014 West I Privacy j Accessibility HOtiN REUTERS http:// weblinks. westlaw.com/result/default.aspx ?action= Search &cfid =1 &cnt= DOC &db =C... 4/7/2014 CA Codes (hsc:25217- 25217.4) HEALTH AND SAFETY CODE SECTION 25217 - 25217.4 25217. For the purposes of this article, the following definitions shall apply: (a) "Conditionally exempt small quantity generator" or "CESQG" means a business concern that meets the criteria for a generator specified in Section 261.5 of Title 40 of the Code of Federal Regulations. (b) "Consolidation location" means a location to which recyclable latex paint or oil -based paint initially collected at a collection location is transported. (c) "Oil -based paint" means a paint that contains drying oil, oil varnish, or oil - modified resin as the basic vehicle ingredient. (d) "Paint" includes both oil -based paint and recyclable latex paint that is collected in accordance with this article. (e) "Recyclable latex paint" means any water -based latex paint, still in liquid form, that is transferred for the purposes of being recycled. 25217.1. No person shall dispose of, or attempt to dispose of, liquid latex paint or oil -based paint in the land or into the waters of the state unless authorized by applicable provisions of law. 25217.2. (a) Recyclable latex paint may be accepted at any location including, but not limited to, a permanent household hazardous waste collection facility in accordance with subdivision (b), if all of the following conditions are met: (1) The location manages the recyclable latex paint in accordance with all applicable latex paint product management procedures specified by federal, state, or local law or regulation that include, at a minimum, that the recyclable latex paint is stored and handled in a manner that minimizes the chance of exposing the handler and the environment to potentially hazardous constituents that may be in, or have been incidentally added to, the recyclable latex paint. (2) The recyclable latex paint is still in liquid form and is in its original packaging or is in a closed container that is clearly labeled. (3) Any latex paint that is accepted as recyclable by the location and that is later discovered to be nonrecyclable shall be deemed to be a waste generated at the location where this discovery is made and this latex paint shall be managed as a waste in accordance with this chapter. (4) The owner or operator of the location has a business plan that meets the requirements of Section 25504, if required by the administrating agency, including, but not limited to, emergency response plans and procedures, as described in subdivision (b) of Section 25504. The plans and procedures shall specifically address recyclable latex paint or meet the department's emergency response and contingency requirements which are applicable to generators of hazardous waste. (5) If the recyclable latex paint is not excluded or exempted from regulation under Chapter I (commencing with Section 1.1) of Title 40 Pagel of 3 http: / /www.leginfo .ca.gov /cgi- binldisplaycode ?section =hsc &group= 25001- 26000 &file =25... 4/15/2014 CA Codes (hsc:25217- 25217.4) of the Code of Federal Regulations, the location meets all applicable federal requirements. (6) The recyclable latex paint is stored for no longer than 180 days. (b) (1) For purposes of this subdivision the following definitions shall apply: (A) "CESQG" means a conditionally exempt small quantity generator, as specified in subdivision (a) of Section 25218.1. (B) "Permanent household hazardous waste collection facility" has the same meaning as defined in subdivision (h) of Section 25218.1. (2) A permanent household hazardous waste collection facility that is authorized to accept hazardous waste from a CESQG pursuant to Section 25218.3 may accept recyclable latex paint from any generator in accordance with this article if the permanent household hazardous waste collection facility does all of the following: (A) Complies with subdivision (a). (B) Sends the recyclable latex paint, for recycling, to a latex paint recycling facility operating pursuant to this article. (C) Maintains a monthly log of the volume of latex paint collected from each generator and submits that information annually with the report submitted pursuant to Section 25218.9 for household hazardous waste collected from household hazardous waste generators. (3) A permanent household hazardous waste collection facility that takes the actions specified in paragraph (2) is not subject to subdivision (b) of Section 25218.3. (4) A permanent household waste collection facility may take the action specified in paragraph (2) notwithstanding any permit condition imposed upon the facility, a regulation adopted by the department to ensure a household hazardous waste collection facility does not accept hazardous waste from a commercial generator other than a CESQG, or the status of the generator. 25217.2.1. (a) A location that accepts recyclable latex paint pursuant to Section 25217.2 may also accept oil -based paint if all of the additional following conditions are met: (1) The collection location is established under an architectural paint stewardship plan approved by the Department of Resources Recycling and Recovery pursuant to the architectural paint recovery program established pursuant to Chapter 5 (commencing with Section 48700) of Part 7 of Division 30 of the Public Resources Code. (2) The collection location receives oil -based paint only from either of the following: (A) A person who generates oil -based paint incidental to owning or maintaining a place of residence. (B) A conditionally exempt small quantity generator. (3) The oil -based paint is still in liquid form and is in its original packaging or is in a closed container that is clearly labeled. (4) The location manages the oil -based paint in accordance with the requirements in Section 25217.2. (5) The collection location operates pursuant to a contract with a manufacturer or paint stewardship organization that has submitted an architectural paint stewardship plan that has been approved by the Department of Resources Recycling and Recovery and the collected paint is managed in accordance with that approved architectural paint stewardship plan. (6) The oil -based paint is stored for no longer than 180 days. (b) Oil -based paint initially collected at a collection location Page 2 of 3 http: / /www.leginfo .ca.gov /cgi- binldisplaycode ?section =hsc &group= 25001- 26000 &file =25... 4/15/2014 CALIFORNIA CODES HEALTH AND SAFETY CODE SECTION 25189.5 25189.5. (a) The disposal of any hazardous waste, or the causing thereof, is prohibited when the disposal is at a facility which does not have a permit from the department issued pursuant to this chapter, or at any point which is not authorized according to this chapter. e -CFR Data is current as of April 8, 2014 Browse Previous I Browse Next Title 40: Protection of Environment PART 261— IDENTIFICATION AND LISTING OF HAZARDOUS WASTE Subpart D —Lists of Hazardous Wastes Contents §261.30 General. §261.31 Hazardous wastes from non - specific sources. §261.32 Hazardous wastes from specific sources. §261.33 Discarded commercial chemical products, off - specification species, container residues, and spill residues thereof. §261.35 Deletion of certain hazardous waste codes following equipment cleaning and replacement. I. Back to Top §261.30 General. (a) A solid waste is a hazardous waste if it is listed in this subpart, unless it has been excluded from this list under § §260.20 and 260.22. (b) The Administrator will indicate his basis for listing the classes or types of wastes listed in this subpart by employing one or more of the following Hazard Codes: Ignitable Waste (I) Corrosive Waste i(C) Reactive Waste (R) Toxicity Characteristic Waste (E) Acute Hazardous Waste (H) "Toxic Waste i(T) Appendix VII identifies the constituent which caused the Administrator to list the waste as a Toxicity Characteristic Waste (E) or Toxic Waste (T) in § §261.31 and 261.32. (c) Each hazardous waste listed in this subpart is assigned an EPA Hazardous Waste Number which precedes the name of the waste. This number must be used in complying with the notification requirements of Section 3010 of the Act and certain recordkeeping and reporting requirements under parts 262 through 265, 267, 268, and 270 of this chapter. (d) The following hazardous wastes listed in §261.31 are subject to the exclusion limits for acutely hazardous wastes established in §261.5: EPA Hazardous Wastes Nos. F020, F021, F022, F023, F026 and F027. [45 FR 33119, May 19, 1980, as amended at 48 FR 14294, Apr. 1, 1983; 50 FR 2000, Jan. 14, 1985; 51 FR 40636, Nov. 7, 1986; 55 FR 11863, Mar. 29, 1990; 75 FR 13002, Mar. 18, 2010] §261.33 Discarded commercial chemical products, off - specification species, container residues, and spill residues thereof. The following materials or items are hazardous wastes if and when they are discarded or intended to be discarded as described in §261.2(a)(2)(i), when they are mixed with waste oil or used oil or other material and applied to the land for dust suppression or road treatment, when they are otherwise applied to the land in lieu of their original intended use or when they are contained in products that are applied to the land in lieu of their original intended use, or when, in lieu of their original intended use, they are produced for use as (or as a component of) a fuel, distributed for use as a fuel, or burned as a fuel. (a) Any commercial chemical product, or manufacturing chemical intermediate having the generic name listed in paragraph (e) or (f) of this section. (b) Any off - specification commercial chemical product or manufacturing chemical intermediate which, if it met specifications, would have the generic name listed in paragraph (e) or (f) of this section. (c) Any residue remaining in a container or in an inner liner removed from a container that has held any commercial chemical product or manufacturing chemical intermediate having the generic name listed in paragraphs (e) or (f) of this section, unless the container is empty as defined in §261.7(b) of this chapter. [Comment: Unless the residue is being beneficially used or reused, or legitimately recycled or reclaimed; or being accumulated, stored, transported or treated prior to such use, re -use, recycling or reclamation, EPA considers the residue to be intended for discard, and thus, a hazardous waste. An example of a legitimate re -use of the residue would be where the residue remains in the container and the container is used to hold the same commercial chemical product or manufacturing chemical intermediate it previously held. An example of the discard of the residue would be where the drum is sent to a drum reconditioner who reconditions the drum but discards the residue.] (d) Any residue or contaminated soil, water or other debris resulting from the cleanup of a spill into or on any land or water of any commercial chemical product or manufacturing chemical intermediate having the generic name listed in paragraph (e) or (f) of this section, or any residue or contaminated soil, water or other debris resulting from the cleanup of a spill, into or on any land or water, of any off - specification chemical product and manufacturing chemical intermediate which, if it met specifications, would have the generic name listed in paragraph (e) or (f) of this section. [Comment: The phrase "commercial chemical product or manufacturing chemical intermediate having the generic name listed in . . ." refers to a chemical substance which is manufactured or formulated for commercial or manufacturing use which consists of the commercially pure grade of the chemical, any technical grades of the chemical that are produced or marketed, and all formulations in which the chemical is the sole active ingredient. It does not refer to a material, such as a manufacturing process waste, that contains any of the substances listed in paragraph (e) or (f). Where a manufacturing process waste is deemed to be a hazardous waste because it contains a substance listed in paragraph (e) or (f), such waste will be listed in either §261.31 or §261.32 or will be identified as a hazardous waste by the characteristics set forth in subpart C of this part.] (e) The commercial chemical products, manufacturing chemical intermediates or off - specification commercial chemical products or manufacturing chemical intermediates referred to in paragraphs (a) through (d) of this section, are identified as acute hazardous wastes (H) and are subject to the small quantity exclusion defined in §261.5(e). [Comment: For the convenience of the regulated community the primary hazardous properties of these materials have been indicated by the letters T (Toxicity), and R (Reactivity). Absence of a letter indicates that the compound only is listed for acute toxicity. Wastes are first listed in alphabetical order by substance and then listed again in numerical order by Hazardous Waste Number.] These wastes and their corresponding EPA Hazardous Waste Numbers are: (f) The commercial chemical products, manufacturing chemical intermediates, or off - specification commercial chemical products referred to in paragraphs (a) through (d) of this section, are identified as toxic wastes (T), unless otherwise designated and are subject to the small quantity generator exclusion defined in §261.5 (a) and (g). [Comment: For the convenience of the regulated community, the primary hazardous properties of these materials have been indicated by the letters T (Toxicity), R (Reactivity), I (Ignitability) and C (Corrosivity). Absence of a letter indicates that the compound is only listed for toxicity. Wastes are first listed in alphabetical order by substance and then listed again in numerical order by Hazardous Waste Number.] These wastes and their corresponding EPA Hazardous Waste Numbers are: Hazardous waste No. Chemical abstracts No. Substance U394 30558-43-1,A2213. 0001 75- 07- O,Acetaldehyde (1) U034 75- 87- 6,Acetaldehyde, trichloro- U 187 62 -44 -2 ,Acetamide, N-(4-ethoxyphenyl)- 0005 53 -96 -3 ,Acetamide, N-91-1- fluoren -2 -yl- U240 '94-75-7 Acetic acid, (2,4- dichlorophenoxy) -, salts & esters U112 141 -78 -6 ,Acetic acid ethyl ester (1) U144 301- 04- 2,Acetic acid, lead(2 +) salt U214 563 -68 -8 Acetic acid, thallium(1 +) salt :see F027 93 -76 -5 Acetic acid, (2,4,5- trichlorophenoxy) - 0002 67-64-1 Acetone (1) 0003 75- 05- 8,Acetonitrile (I,T) 0004 98- 86- 2,Acetophenone 0005 53 -96 -3 2- Acetylaminofluorene 0006 75- 36- 5Acetyl chloride (C,R,T) 0007 79 -06 -1 Acrylamide 0008 79- 10- 7Acrylic acid (1) 0009 107 -13 -1 Acrylonitrile U011 61 -82 -5 Amitrole U012 62 -53 -3 Aniline (I,T) U136 75 -60 -5 rsinic acid, dimethyl- U014 492 -80 -8 Auramine 0015 115 -02 -6 Azaserine 1-1010 50- 07- 7Azirino[ 2', 3': 3, 4] pyrrolo[1,2- a]indole- 4,7- dione, 6- amino -8- [ [(aminocarbonyl)oxy]methyl] -1,1 a,2,8,8a,8b- hexahydro -8a- methoxy -5- methyl-, [1aS- (1aalpha, 8beta,8aalpha,8balpha)]- U280 101 -27 -9 Barban. U278 22781 -23 -3 Bendiocarb. IU364 22961 -82 -6 Bendiocarb phenol. U271 17804 -35 -2 Benomyl. U157 56 -49 -5 Benzo]aceanthrylene, 1,2- dihydro- 3- methyl- U016 225 -51 -4 Benz[c]acridine U017 98 -87 -3 Benzal chloride 0192 23950- 58- 56enzamide, 3,5- dichloro- N -(1,1- dimethyl- 2- propynyl)- U018 56 -55 -3 Benz[a]anthracene U094 57 -97 -6 Benz[a]anthracene, 7,12- dimethyl- U012 62 -53 -3 Benzenamine (I,T) U014 492 -80 -8 Benzenamine, 4,4'-carbonimidoylbis[N,N-dimethyl- IU049 3165 -93 -3 Benzenamine, 4- chloro -2- methyl -, hydrochloride U093 60 -11 -7 Benzenamine, N,N- dimethyl- 4- (phenylazo)- U328 95 -53 -4 Benzenamine, 2- methyl- U353 106 -49 -0 Benzenamine, 4- methyl- U158 101 -14 -4 Benzenamine, 4,4'-methylenebis[2-chloro- U222 636 -21 -5 Benzenamine, 2- methyl -, hydrochloride IU181 99 -55 -8 Benzenamine, 2- methyl -5- nitro- U019 71 -43 -2 Benzene (I,T) U038 510 -15 -6 Benzeneacetic acid, 4- chloro- alpha- (4- chlorophenyl)- alpha - hydroxy -, ethyl ester U030 101 -55 -3 Benzene, 1- bromo -4- phenoxy- U035 305 -03 -3 Benzenebutanoic acid, 4-[bis(2-chloroethyl)amino]- U037 108 -90 -7 Benzene, chloro- IU221 25376 -45 -8 Benzenediamine, ar- methyl- U028 117 -81- 71,2 - Benzenedicarboxylic acid, bis(2- ethylhexyl) ester U069 84 -74- 21,2- Benzenedicarboxylic acid, dibutyl ester lU088 84 -66- 21,2- Benzenedicarboxylic acid, diethyl ester U102 131 -11- 31,2- Benzenedicarboxylic acid, dimethyl ester U107 117 -84- 01,2 - Benzenedicarboxylic acid, dioctyl ester 0070 95 -50 -1 Benzene, 1,2- dichloro- U071 541 -73 -1 Benzene, 1,3- dichloro- IU072 106 -46 -7 Benzene, 1,4- dichloro- U060 72 -54 -8 Benzene, 1,1'-(2,2-dichloroethylidene)bis[4-chloro- U017 98 -87 -3 Benzene, (dichloromethyl)- IU223 26471 -62 -5 Benzene, 1,3- diisocyanatomethyl- (R,T) U239 1330 -20 -7 Benzene, dimethyl- (1) U201 108 -46- 31,3- Benzenediol U127 118 -74 -1 iBenzene, hexachloro- IU056 110 -82 -7 IBenzene, hexahydro- (1) U220 108 -88 -3 Benzene, methyl - U105 121 -14 -2 Benzene, 1- methyl -2,4- dinitro- U106 606 -20 -2 Benzene, 2- methyl -1,3- dinitro- IU055 98- 82- 81Benzene, (1- methylethyl)- (1) U169 98-95-3 Benzene, nitro - U183 608 -93 -5 Benzene, pentachloro- U185 82 -68 -8 Benzene, pentachloronitro- U020 98-09-91 Benzenesulfonic acid chloride (C, R) IU020 98- 09- 9,Benzenesulfonyl chloride (C,R) IU207 95-94-3 Benzene, 1,2,4,5-tetrachloro- U061 50 -29 -3 Benzene, 1, 1'-(2,2,2-trichloroethylidene)bis[4-chloro- U247 72 -43 -5 Benzene, 1, 1'-( 2 ,2,2- trichloroethylidene)bis[4- methoxy- U023 98-07-7 Benzene, (trichloromethyl)- IU234 99 -35 -4 Benzene, 1,3,5- trinitro- U021 92 -87 -5 IBenzidine U278 22781 -23- 31,3- Benzodioxol4-ol, 2,2- dimethyl -, methyl carbamate. U364 22961 -82- 61,3 - Benzodioxol -4 -ol, 2,2- dimethyl -, IU203 94- 59- 71,3 - Benzodioxole, 5- (2- propenyl)- IU141 120 -58 -1 1,3- Benzodioxole, 5- (1- propenyl)- U367 1563- 38 -8'7- Benzofuranol, 2,3- dihydro- 2,2- dimethyl- U090 94 -58 -61,3- Benzodioxole, 5- propyl- 'U064 189 -55 -9 Benzo[rst]pentaphene U248 '81- 81- 22H- 1- Benzopyran -2 -one, 4- hydroxy- 3- (3- oxo -1- phenyl - butyl) -, & salts, when present at concentrations of 0.3% or less IU022 50 -32 -8 IBenzo[a]pyrene U197 106 -51 -4 p- Benzoquinone U023 98 -07 -7 Benzotrichloride (C,R,T) U085 1464 -53 -5 2,2'- Bioxirane U021 92 -87 -5 [1,1'- Biphenyl] -4,4'- diamine IU073 91 -94 -1 [1,1'- Biphenyl] -4,4'- diamine, 3,3'- dichloro- U091 119 -90- 4[1,1' - Biphenyl] -4,4'- diamine, 3,3'- dimethoxy- U095 119 -93- 7[1,1'- Biphenyl] -4,4'- diamine, 3,3'- dimethyl- IU225 75 -25 -2 Bromoform U030 101- 55 -34- Bromophenyl phenyl ether U128 87 -68- 31,3- Butadiene, 1,1,2,3,4,4- hexachloro- IU172 924-16-3 1 -Butanamine, N- butyl -N- nitroso- U031 71-36-3 1 -Butanol (1) U159 78- 93- 32- Butanone (I,T) U160 1338 - 23-42- Butanone, peroxide (R,T) U053 4170- 30 -32- Butenal U074 764- 41 -02- Butene, 1,4- dichloro- (I,T) U143 303 - 34-42- Butenoic acid, 2- methyl -, 7-[[2,3-dihydroxy- 2-(1 -m eth ox y eth y I) -3- meth yl- l -oxo b u to x y] methyl] - 2, 3, 5, 7a- tetrahydro -1H- pyrrolizin -1 -yl ester, [1 S-11 alpha(Z), 7(25 *, 3R *), 7aalpha]]- U031 71 -36 -3 n -Butyl alcohol (1) U136 75 -60 -5 Cacodylic acid U032 13765 -19 -0 Calcium chromate U372 10605 -21 -7 Carbamic acid, 1 H- benzimidazol -2 -yl, methyl ester. U271 17804 -35 -2 Carbamic acid, [1-[(butylamino)carbonyl] -1 H- benzimidazol- 2 -yl] -, methyl ester. U280 101 -27 -9 Carbamic acid, (3- chlorophenyl) -, 4- chloro- 2- butynyl ester. U238 51 -79 -6 Carbamic acid, ethyl ester U178 615 -53 -2 Carbamic acid, methylnitroso -, ethyl ester IU373 122-42-9 Carbamic acid, phenyl -, 1- methylethyl ester. IU409 23564 -05 -8 Carbamic acid, [1,2- phenylenebis (iminocarbonothioyl)]bis -, dimethyl ester. IU097 79 -44 -7 Carbamic chloride, dimethyl- IU389 2303 -17 -5 Carbamothioic acid, bis(1- methylethyl) -, S- (2,3,3 - trichloro -2- propenyl) ester, U387 52888 -80 -9 Carbamothioic acid, dipropyl -, S- (phenylmethyl) ester. U114 1111 -54 -6 Carbamodithioic acid, 1,2- ethanediylbis -, salts & esters U062 2303- 16- 4Carbamothioic acid, bis(1- methylethyl) -, S- (2,3- dichloro -2- propenyl) ester IU279 63 -25 -2 Carbaryl. U372 10605 -21 -7 Carbendazim. U367 1563 -38 -8 Carbofuran phenol. U215 6533 -73 -9 Carbonic acid, dithallium(1 +) salt U033 353 -50 -4 Carbonic difluoride U156 79 -22 -1 Carbonochloridic acid, methyl ester (1,T) U033 353 -50-4 Carbon oxyfluoride (R,T) U211 56 -23 -5 Carbon tetrachloride U034 75 -87 -6 Chloral IU035 305 -03 -3 Chlorambucil U036 57 -74 -9 Chlordane, alpha & gamma isomers U026 494 -03 -1 Chlornaphazin U037 108 -90 -7 Chlorobenzene U038 510 -15 -6 Chlorobenzilate U039 59 -50 -7 p- Chloro -m- cresol IU042 110 -75 -8 2- Chloroethyl vinyl ether U044 67 -66 -3 Chloroform U046 107 -30 -2 Chloromethyl methyl ether U047 91 -58 -7 beta- Chloronaphthalene U048 95 -57 -8 o- Chlorophenol U049 3165- 93 -34- Chloro- o- toluidine, hydrochloride lU032 13765 -19 -0 Chromic acid H2 CrO4, calcium salt U050 218 -01 -9 Chrysene U051 Creosote U052 1319 -77 -3 Cresol (Cresylic acid) IU053 4170 -30 -3 Crotonaldehyde U055 98 -82 -8 Cumene (1) U246 506 -68 -3 Cyanogen bromide (CN)Br iU 197 106 -51 -4 2, 5- Cyclohexad iene -1,4 -dione U056 110 -82 -7 Cyclohexane (1) U129 58- 89- 9Cyclohexane, 1,2,3,4,5,6 - hexachloro -, (1 alpha,2alpha,3beta,4alpha, 5alpha,6beta)- U057 108 -94 -1 Cyclohexanone (1) U130 77-47- 41,3 - Cyclopentadiene, 1,2,3,4,5,5-hexachloro- U058 50 -18 -0 Cyclophosphamide 'U240 '94 -75 -7 2,4 -D, salts & esters U059 20830 -81 -3 Daunomycin iU060 72 -54 -8 DDD U061 50 -29 -3 DDT U062 2303 -164 Diallate U063 53 -70 -3 Dibenz[a,h]anthracene U064 189 -55 -9 Dibenzo[a,i]pyrene CALIFORNIA CODES HEALTH AND SAFETY CODE SECTION 25507 25507. (a) Except as provided in this article, a business shall establish and implement a business plan for emergency response to a release or threatened release of a hazardous material in accordance with the standards prescribed in the regulations adopted pursuant to Section 25503 if the business meets any of the following conditions: (1) The business handles a hazardous material or a mixture containing a hazardous material that has a quantity at any one time during the reporting year that is equal to,.or greater than, 55 gallons for materials that are liquids, 500 pounds for solids, or 200 cubic feet for compressed gas. The physical state and quantity present of mixtures shall be determined by the physical state of the mixture as whole, not individual components, at standard temperature and pressure. (2) The business is required to submit chemical inventory information pursuant to Section 11022 of Title 42 of the United States Code. (3) The business handles at any one time during the reporting year an amount of a hazardous material that is equal to, or greater than the threshold planning quantity, under both of the following conditions: (A) The hazardous material is an extremely hazardous substance, as defined in Section 355.61 of Title 40 of the Code of Federal Regulations. (B) The threshold planning quantity for that extremely hazardous substance listed in Appendices A and B of Part 355 (commencing with Section 355.1) of Subchapter J of Chapter I of Title 40 of the Code of Federal Regulations is less than 500 pounds. (4) (A) The business handles at any one time during the reporting year a total weight of 5,000 pounds for solids or a total volume of 550 gallons for liquids, if the hazardous material is a solid or liquid substance that is classified as a hazard for purposes of Section 5194 of Title 8 of the California Code of Regulations solely as an irritant or sensitizer, unless the unified program agency finds, and provides notice to the business handling the product, that the handling of lesser quantities of that hazardous material requires the submission of a business plan, or any portion of a business plan, in response to public health, safety, or environmental concerns. (B) The unified program agency shall make the findings required by subparagraph (A) in consultation with the local fire chief. (5) (A) The business handles at any one time during the reporting year a total of 1,000 cubic feet, if the hazardous material is a compressed gas and is classified as a hazard for the purposes of Section 5194 of Title 8 of the California Code of Regulations solely as a compressed gas, unless the unified program agency finds, and provides notice to the business handling the product, that the handling_of lesser quantities of that hazardous material requires the submission of a business plan, or any portion thereof, in response to public health, safety, or environmental concerns. (B) The unified program agency shall make the findings required by subparagraph (A) in consultation with the local fire chief. (C) The hazardous materials subject to subparagraph (A) include a gas for which the only health and physical hazards are simple asphyxiation and the release of pressure. (D) The hazardous materials subject to subparagraph (A) do not include gases in a cryogenic state. (6) The business handles a radioactive material at any one time during the reporting year that is handled in quantities for which an emergency plan is required to be adopted pursuant to Part 30 (commencing with Section 30.1), Part 40 (commencing with Section 40.1), or Part 70 (commencing with Section 70.1), of Chapter 1 of Title 10 of the Code of Federal Regulations, or pursuant to any regulations adopted by the state in accordance with those regulations. (7) The business handles perchlorate material, as defined in subdivision (c) of Section 25210.5, in a quantity at any one time during the reporting year that is equal to, or greater than, the thresholds listed in paragraph (1). (b) Oxygen, nitrogen, and nitrous oxide, ordinarily maintained by a physician, dentist, podiatrist, veterinarian, or pharmacist, at his or her office or place of business, stored at each office or place of business in quantities of not more than 1,000 cubic feet of each material at any one time, are exempt from this section and from Section 25506. The unified program agency may require a one -time inventory of these materials for a fee not to exceed fifty dollars ($50) to pay for the costs incurred by the agency in processing the inventory forms. (c) (1) Lubricating oil is exempt from this section and Sections 25506 and 25508, for a single business facility, if the total volume of each type of lubricating oil handled at that facility does not exceed 55 gallons and the total volume of all types of lubricating oil handled at that facility does not exceed 275 gallons, at any one time. (2) For purposes of this paragraph, "lubricating oil" means oil intended for use in an internal combustion crankcase, or the transmission, gearbox, differential, or hydraulic system of an automobile, bus, truck, vessel, airplane, heavy equipment, or other machinery powered by an internal combustion or electric powered engine. "Lubricating oil" does not include used oil, as defined in subdivision (a) of Section 25250.1. (d) Oil - filled electrical equipment that is not contiguous to an electric facility is exempt from this section and Sections 25506 and 25508 if the aggregate capacity is less than 1,320 gallons. (e) Hazardous material contained solely in a consumer product for direct distribution to, and use by, the general public is exempt from the business plan requirements of this article unless the unified program agency has found, and has provided notice to the business handling the product, that the handling of certain quantities of the product requires the submission of a business plan, or any portion thereof, in response to public health, safety, or environmental concerns. (f) In addition to the authority specified in subdivision (h), the governing body of the unified program agency may, in exceptional circumstances, following notice and public hearing, exempt a hazardous substance specified in subdivision (o) of Section 25501 from Section 25506, if it is found that the hazardous substance would not pose a present or potential danger to the environment or to human health and safety if the hazardous substance was released into the environment. The unified program agency shall send a notice to the office and the secretary within 15 days from the effective date of any exemption granted pursuant to this subdivision. (g) The unified program agency, upon application by a handler, may exempt the handler, under conditions that the unified program agency determines to be proper, from any portion of the requirements to establish and maintain a business plan, upon a written finding that the exemption would not pose a significant present or potential hazard to human health or safety or to the environment, or affect the ability of the unified program agency and emergency rescue personnel to effectively respond to the release of a hazardous material, and that there are unusual circumstances justifying the exemption. The unified program agency shall specify in writing the basis for any exemption under this subdivision. (h) The unified program agency, upon application by a handler, may exempt a hazardous material from the inventory provisions of this article upon proof that the material does not pose a significant present or potential hazard to human health and safety or to the environment if released into the workplace or environment. The unified program agency shall specify in writing the basis for any exemption under this subdivision. (i) The unified program agency shall adopt procedures to provide for public input when approving applications submitted pursuant to subdivisions (g) and (h). 25507.1. (a) A unified program agency shall exempt a business operating a farm for purposes of cultivating the soil or raising or harvesting any agricultural or horticultural commodity from filing the information in the business plan required by paragraphs (3) and (4) of subdivision (a) of Section 25505 if all of the following requirements are met: (1) The agricultural handler annually submits the inventory of information required by Section 25505 to the statewide information management system. (2) Each building in which hazardous materials subject to this article are stored is posted with signs, in accordance with regulations that the office shall adopt, that provide notice of the storage of any of the following: (A) Pesticides. (B) Petroleum fuels and oil. (C) Types of fertilizers. (3) The agricultural handler provides the training programs specified in paragraph (4) of subdivision (a) of Section 25505. (b) The unified program agency may designate the county agricultural commissioner to conduct the inspections of agricultural handlers. The agricultural commissioner shall schedule and conduct inspections in accordance with Section 25511. 25507.2. (a) The unified program agency shall exempt a business operating an unstaffed remote facility located in an isolated sparsely populated area from Sections 25506 and 25507 if the facility is not otherwise subject to the requirements of applicable federal law, and all of the following requirements are met: (1) The types and quantities of materials onsite are limited to one or more of the following: (A) One thousand standard cubic feet of compressed inert gases (asphyxiation and pressure hazards only). (B) Five hundred gallons of combustible liquid used as a fuel source. (C) Two hundred gallons of corrosive liquids used as electrolytes in closed containers. (D) Five hundred gallons of lubricating and hydraulic fluids. (E) One thousand two hundred gallons of flammable gas used as a fuel source. (F) Any quantity of mineral oil contained within electrical equipment, such as transformers, bushings, electrical switches, and voltage regulators, if the spill prevention control and countermeasure plan has been prepared for quantities that meet or exceed 1,320 gallons. (2) The facility is secured and not accessible to the public. (3) Warning signs are posted and maintained for hazardous materials pursuant to the California Fire Code. (4) A one -time notification and inventory are provided to the unified program agency along with a processing fee in lieu of the existing fee. The fee shall not exceed the actual cost of processing the notification and inventory, including a verification inspection, if necessary. (5) If the information contained in the initial notification or inventory changes and the time period of the change is longer than 30 days, the notification or inventory shall be resubmitted within 30 days to the unified program agency to reflect the change, along with a processing fee, in lieu of the existing fee, that does not exceed the actual cost of processing the amended notification or inventory, including a verification inspection, if necessary. (6) The unified program agency shall forward a copy of the notification and inventory to those agencies that share responsibility for emergency response. (7) The unified program agency may require an unstaffed remote facility to submit a hazardous materials business plan and inventory in accordance with this article if the agency finds that special circumstances exist so that development and maintenance of the business plan and inventory are necessary to protect the public health and safety and the environment. (b) On- premises use, storage, or both, of propane in an amount not to exceed 500 gallons that is for the sole purpose of cooking, heating the employee work areas, and heating water, within that business, is exempt from Section 25507, unless the uniform program agency finds, and provides notice to the business handling the propane, that the handling of the on- premise propane requires the submission of a business plan, or any portion of a business plan, in response to public health, safety, or environmental concerns. (c) The unified program agency shall provide all information obtained from completed inventory forms, upon request,. to emergency rescue personnel on a 24 -hour basis. CALIFORNIA CODES HEALTH AND SAFETY CODE SECTION 25503 25503. (a) The office shall adopt, after public hearing and consultation with the Office of the State Fire Marshal and other appropriate public entities, regulations for minimum standards for business plans and area plans. All business plans and area plans shall meet the standards adopted by the office. (b) The standards for business plans in the regulations adopted pursuant to subdivision (a) shall do all of the following: (1) Set forth minimum requirements of adequacy, and not preclude the imposition of additional or more stringent requirements by local government. (2) Take into consideration and adjust for the size and nature of the business, the proximity of the business to residential areas and other populations, and the nature of the damage potential of its hazardous materials in establishing standards for paragraphs (3) and (4) of subdivision (a) of Section 25505. (3) Take into account the existence of local area and business plans that meet the requirements of this article so as to minimize the duplication of local efforts, consistent with the objectives of this article. (4) Define what releases and threatened releases are required to be reported pursuant to Section 25510. The office shall consider the existing federal reporting requirements in determining a definition of reporting releases pursuant to Section 25510. (c) A unified program agency shall, in consultation with local emergency response agencies, establish an area plan for emergency response to a release or threatened release of a hazardous material within its jurisdiction. An area plan is not a statute, ordinance, or regulation for purposes of Section 669 of the Evidence Code. The standards for area plans in the regulations adopted pursuant to subdivision (a) shall provide for all of the following: (1) Procedures and protocols for emergency rescue personnel, including the safety and health of those personnel. (2) Preemergency planning. (3) Notification and coordination of onsite activities with state, local, and federal agencies, responsible parties, and special districts. (4) Training of appropriate employees. (5) Onsite public safety and information. (6) Required supplies and equipment. (7) Access to emergency response contractors and hazardous waste disposal sites. (8) Incident critique and followup. (9) Requirements for notification to the office of reports made pursuant to Section 25510. (d) (1) The unified program agency shall submit to the office for its review a copy of the proposed area plan within 180 days after adoption of regulations by the office. The office shall notify the unified program agency as to whether the area plan is adequate and meets the area plan standards. The unified program agency shall submit a corrected area plan within 45 days of this notice. (2) The unified program agency shall certify to the office every three years that it has conducted a complete review of its area plan and has made any necessary revisions. If a unified program agency makes a substantial change to its area plan, it shall forward the changes to the office within 14 days after the changes have been made. (e) The inspection and enforcement program established pursuant to paragraphs (2) and (3) of subdivision (a) of Section 25404.2, shall include the basic provisions of a plan to conduct onsite inspections of businesses subject to this article by the unified program agency. These inspections shall ensure compliance with this article and shall identify existing safety hazards that could cause or contribute to a release and, where appropriate, enforce any applicable laws and suggest preventative measures designed to minimize the risk of the release of hazardous material into the workplace or environment. The requirements of this paragraph do not alter or affect the immunity provided to a public entity pursuant to Section 818.6 of the Government Code. CALIFORNIA CODES HEALTH AND SAFETY CODE SECTION 25510 25510. (a) Except as provided in subdivision (b), the handler or an employee, authorized representative, agent, or designee of a handler, shall, upon discovery, immediately report any release or threatened release of a hazardous material to the unified program agency, and to the office, in accordance with the regulations adopted pursuant to Section 25503. The handler or an employee, authorized representative, agent, or designee of the handler shall provide all state, city, or county fire or public health or safety personnel and emergency rescue personnel with access to the handler's facilities. (b) Subdivision (a) does not apply to a person engaged in the transportation of a hazardous material on a highway that is subject to, and in compliance with, the requirements of Sections 2453 and 23112.5 of the Vehicle Code. 25510.1. (a) A business required to submit a followup emergency notice pursuant to Section 11004(c) of Title 42 of the United States Code shall submit the notice on a form approved by the office. (b) The office may adopt guidelines for the use of the forms required by subdivision (a). 25510.2. In order to carry out the purposes of this chapter, a unified program agency may train for, and respond to, the release, or threatened release, of a hazardous material. 25510.3. The emergency rescue personnel, responding to the reported release or threatened release of a hazardous material, or of a regulated substance, as defined in Section 25532, or to any fire or explosion involving a material or substance that involves a release that would be required to be reported pursuant to Section 25510, shall immediately advise the superintendent of the school district having jurisdiction, where the location of the release or threatened release is within one -half mile of a school. k�h uOue5 1 y) HEALTH AND SAFETY CODE SECTION 25500 -25519 25500. (a) The Legislature declares that, in order to protect the public health and safety and the environment, it is necessary to establish business and area plans relating to the handling and release or threatened release of hazardous materials. The establishment of a statewide environmental reporting system for these plans is a statewide requirement. Basic information on the location, type, quantity, and health risks of hazardous materials handled, used, stored, or disposed of in the state, which could be accidentally released into the environment, is required to be submitted to firefighters, health officials, planners, public safety officers, health care providers, regulatory agencies, and other interested persons. The information provided by business and area plans is necessary in order to prevent or mitigate the damage to the health and safety of persons and the environment from the release or threatened release of hazardous materials into the workplace and environment. (b) The Legislature further finds and declares that this article and Article 2 (commencing with Section 25531) do not occupy the whole area of regulating the inventorying of hazardous materials and the preparation of hazardous materials response plans by businesses, and the Legislature does not intend to preempt any local actions, ordinances, or regulations that impose additional or more stringent requirements on businesses that handle hazardous materials. Thus, in enacting this article and Article 2 (commencing with Section 25531), it is not the intent of the Legislature to preempt or otherwise nullify any other statute or local ordinance containing the same or greater standards and protections. 25501. Unless the context indicates otherwise, the following definitions govern the construction of this article: (a) "Agricultural handler" means a business operating a farm that is subject to the exemption specified in Section 25507.1. (b) "Area plan" means a plan established pursuant to Section 25503 by a unified program agency for emergency response to a release or threatened release of a hazardous material within a city or county. (c) "Business" means all of the following: (1) An employer, self - employed individual, trust, firm, joint stock company, corporation, partnership, or association. (2) A business organized for profit and a nonprofit business. (3) The federal government, to the extent authorized by law. (4) An agency, department, office, board, commission, or bureau of state government, including, but not limited to, the campuses of the California Community Colleges, the California State University, and the University of California. (5) An agency, department, office, board, commission, or bureau of a city, county, or district. (d) "Business plan" means a separate plan for each facility, site, or branch of a business that meets the requirements of Section 25505. (e) (1) "Certified unified program agency" or "CUPA" means the agency certified by the secretary to implement the unified program Page 1 of 20 http:// www. leginfo .ca.gov /cgi- binldisplaycode ?section =hsc &group= 25001- 26000 &file= 255.., 4/7/2014 California Code of Regulations Pagel of 2 California Office of Home Most Recent Updates Search Help Administrative Law x Welcome to the online source for the California Code of Regulations 19 CA ADC § 2729.1 § 2729.1. Business Plan General Requirements. 19 CCR § 2729.1 Cal. Admin. Code tit. 19, § 2729.1 Barclays Official California Code of Regulations Currentness Title 19. Public Safety Division 2. California Emergency Management Agency Chapter 4. Hazardous Material Release Reporting, Inventory, and Response Plans 'W-Article 4. Minimum Standards for Business Plans (Refs & Annos) y§ 2729.1. Business Plan General Requirements. (a) A business that handles a hazardous material or a mixture containing a hazardous material shall establish and implement a business plan if the hazardous material is handled in quantities: (1) equal to or greater than 500 pounds, 55 gallons, or 200 cubic feet of gas (gas calculated at standard temperature and pressure), or (2) equal to or greater than the applicable federal threshold planning quantity (TPQ) for an extremely hazardous substance (EHS) listed in Appendix A, Part 355, Title 40, of the Code of Federal Regulations. (3) radioactive materials that are handled in quantities for which an emergency plan is required to be adopted pursuant to Part 30 (commencing with Section 30. 1), Part 40 (commencing with Section 40. 1), or Part 70 (commencing with Section 70. 1), of Chapter 10 of Title 10 of the Code of Federal Regulations (54 Federal Register. 14051), or pursuant to any regulations adopted by, the state in accordance with those regulations. (b) If a business handles a hazardous material pursuant to (a)(2) above, the business is subject to the Federal Emergency Planning and Community Right -to -Know Act (EPCRA) and shall also comply with Section 2729.6 of this article. Note: Authority cited: Sections 25503, Health and Safety Code. Reference: Sections 25503.5(a) and 25503.8(a), Health and Safety Code. HISTORY 1. New section filed 1 -8 -99 as an emergency; operative 1 -8 -99 (Register 99, No. 2). A Certificate of Compliance must be transmitted to OAL by 5 -10 -99 or emergency language will be repealed by operation of law on the following day. 2. New section refiled 5 -7 -99 as an emergency; operative 5 -8 -99 (Register 99, No. 19). A Certificate of Compliance must be transmitted to OAL by 9 -7 -99 or emergency language will be repealed by operation of law on the following day. 3. Repealed by operation of Government Code section 11346.1(8) (Register 99, No. 37). 4. New section filed 9 -8 -99 as an emergency; operative 9 -8 -99 (Register 99, No. 37). A Certificate of http: // weblinks. westlaw.com /result/default.aspx ?cite =l 9CAADCS2729 %2E 1 &db= 1000937... 4/7/2014 California Code of Regulations Page 2 of 2 Compliance must be transmitted to OAL by 1 -6 -2000 or emergency language will be repealed by operation of law on the following day. 5. Certificate of Compliance as to 9 -8 -99 order transmitted to OAL 1 -6 -2000 and filed 2 -17 -2000 (Register 2000, No. 7). 19 CCR § 2729.1, 19 CA ADC § 2729.1 This database is current through 3/21/14 Register 2014, No. 12 END OF DOCUMENT © 2014 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. Docs In Sequence Table of Contents Westlaw, part of Thomson Reuters © 2014 West I Privacy I Accessibility T'140MSON REUTERS' http: / /weblinks.westlaw.com/ result /default.aspx ?cite =l 9CAADCS2729 %2E 1 &db= 1000937... 4/7/2014 C;alitornia Code of Regulations 19 CCR § 2731 Page 1 of 2 California Office of Home Most Recent Updates Search Help Administrative Law Welcome to the online source for the California Code of Regulations 19 CA ADC § 2731 § 2731. Emergency Response Plans and Procedures. Cal. Admin. Code tit. 19, § 2731 Barclays Official California Code of Regulations Currentness Title 19. Public Safety Division 2. California Emergency Management Agency Chapter 4. Hazardous Material Release Reporting, Inventory, and Response Plans "® Article 4. Minimum Standards for Business Plans (Refs & Annos) y§ 2731. Emergency Response Plans and Procedures. The business plan shall include the following emergency response procedures for a release or threatened release of hazardous materials, scaled appropriately for the size and nature of the business, the nature of the damage potential of the hazardous materials handled, and the proximity of the business to residential areas and other populations: (a) immediate notification of: (1) local emergency response personnel; (2) the administering agency and the California Emergency Management Agency pursuant to article 2 of this subchapter; (3) persons within the facility who are necessary to respond to an incident; (b) identification of local emergency medical assistance appropriate for potential accident scenarios; (c) mitigation, prevention, or abatement of hazards to persons, property, or the environment; (d) immediate notification and evacuation of the facility; and (e) identification of areas of the facility and mechanical or other systems that require immediate inspection or isolation because of their vulnerability to earthquake related ground motion. Note: Authority cited: Section 8585, Government Code; and Sections 25503 and 25517.5, Health and Safety Code. Reference: Section 8585, Government Code; and Sections 25503(b)(2), 25504(b) and 25507, Health and Safety Code. HISTORY 1. Editorial renumbering of former section 2756 to section 2731 (Register 86, No. 37). 2. Amendment of initial paragraph, subsection (d) and reference citation filed as an emergency 9- 12 -86, operative 9 -12 -86 making the following changes: In initial paragraph added "and nature" after "size "; "damage potential of the after nature of the"; and "and the proximity of the business to residential areas and other populations:" after "materials handled, "; Subsection (d) added "the" after "evacuation of" and deleted "employees and the affected public, pursuant to the determinations made under section 2726 http: / /weblinks.westlaw.com/ result /default.aspx ?cite= 19CAADCS2731 &db= 1000937 &find... 4/7/2014 California Code of Regulations Page 2 of 2 (c) of article 3 of this subchapter" after "facility "; Certificate of Compliance must be transmitted no later than 1- 12 -87, or emergency language will be repealed by operation of law (Gov. C. 11346.1); (Register 86, No. 37). 3. Certificate of Compliance transmitted to OAL 1 -7 -87 and filed 2 -6 -87 (Register 87, No. 6). 4. Amendment filed 9- 20 -90; operative 10 -20 -90 (Register 90, No. 45). 5. Change without regulatory effect amending subsection (a)(2) and Note filed 5 -12 -2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 20). 19 CCR § 2731, 19 CA ADC § 2731 This database is current through 3/21/14 Register 2014, No. 12 END OF DOCUMENT © 2014 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. Docs In Sequence Table of Contents Westllaw, part of Thomson Reuters © 2014 West I Privacy Accessibility r�. http:// weblinks. westlaw.comlresultldefault.aspx ?cite= 19CAADCS2731 &db= 1000937 &find... 4/7/2014 California Code of Regulations Pagel of 2 _ California Office of Home Most Recent Updates Search Help Administrative Law welcome to the online source for the California Code of Regulations 19 CA ADC § 2703 § 2703. Immediate Reporting of a Release or a Threatened Release. Term Wk up 19 CCR § 2703 Cal. Admin. Code tit. 19, § 2703 Barclays Official California Code of Regulations Currentness Title 19. Public Safety Division 2. California Emergency Management Agency Chapter 4. Hazardous Material Release Reporting, Inventory, and Response Plans RW Article 2. Reporting Requirements n0§ 2703. Immediate Reporting of a Release or a Threatened Release. (a) A person shall provide an immediate, verbal report of any release or threatened release of a hazardous material to the administering agency and the California Emergency Management Agency* as soon as: (1) a person has knowledge of the release or threatened release; (2) notification can be provided without impeding immediate control of the release or threatened release; (3) notification can be provided without impeding immediate emergency medical measures. (b) The immediate reporting pursuant to subsection (a) of this section shall include, as a minimum: (1) the exact location of the release or threatened release; (2) the name of the person reporting the release or threatened release; (3) the hazardous materials involved in the release or threatened release; (4) an estimate of the quantity of hazardous materials involved; and (5) if known, the potential hazards presented by the hazardous material involved in the release or threatened release; (c) The immediate reporting pursuant to subsection (a) of this section shall not be required if there is a reasonable belief that the release or threatened release poses no significant present or potential hazard to human health and safety, property, or the environment. (d) Immediate reporting pursuant to subsection (a) of this section shall be made to the California Emergency Management Agency, at telephone number (916) 845 -8911 or (800) 852 -7550, and to the local administering agency. The administering agency may designate a call to the 911 emergency number as meeting the requirement to call the administering agency. (e) The notifications in subsection (d) shall constitute compliance with the requirements of subdivision (b) http: // weblinks. westlaw.com /result /default.aspx ?action= Search &cfid =l &cnt= DOC &db =C... 4/7/2014 California Code of Regulations Page 2 of 2 of section 11004 of title 42 of the United States Code (1989) regarding verbal notification of the State Emergency Planning Commission and the Local Emergency Planning Committee. * For additional guidance on notification procedures, consult the State of California Hazardous Material Incident Contingency Plan (HMICP). Note: Authority: Section 8585, Government Code; and Sections 25503, 25503.1 and 25520, Health and Safety Code. Reference: Section 8585, Government Code; and Sections 25503(b)(4), 25503.1, 25507, 25518 and 25520, Health and Safety Code. HISTORY 1. Certificate of Compliance as to 1 -17 -86 order including amendment of subsection (c) transmitted to OAL 5 -16 -86 and filed 6 -16 -86 (Register 86, No. 25). 2. Amendment of subsection (d) and new subsection (e) filed 9- 20 -90; operative 10 -20 -90 (Register 90, No. 45). 3. Amendment of subsection (d) filed 4- 30 -96; operative 4 -30 -96 pursuant to Government Code section 11343.4(d) (Register 96, No. 18). 4. Change without regulatory effect amending subsection (d) filed 3 -1 -2005 pursuant to section 100, title 1, California Code of Regulations (Register 2005, No. 9). 5. Change without regulatory effect amending subsections (a) and (d) and Note filed 5 -12 -2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 20). 19 CCR § 2703, +19 CA ADC § 2703 -40- This database is current through 3/21/14 Register 2014, No. 12 END OF DOCUMENT Term © 2014 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. Docs In Sequence Table of Contents Westlaw, part of Thomson Reuters © 2014 West I Privacy I Accessibility { THOMSON REUTERS' http:// weblinks. westlaw.com/result/default.aspx ?action= Search &cfid =l &cnt= DOC &db =C... 4/7/2014 C;alitorma Code of Regulations Page 1 of 1 California Office of Howie Most Recent Updates Search Help Administrative Lave - V0. -a, Welcome to the online source for the 4-P-1 , � California Code of Regulations 19 CA ADC § 2650 § 2650. Person. 19 CCR § 2650 Cal. Admin. Code tit. 19, § 2650 Barclays Official California Code of Regulations Currentness Title 19. Public Safety Division 2. California Emergency Management Agency Chapter 4. Hazardous Material Release Reporting, Inventory, and Response Plans Rk Article 1. Definitions y§ 2650. Person. "Person" means any employee, authorized representative, agent or designee of a handier. Note: Authority cited: Section 25520, Health and Safety Code. Reference: Sections 25507, 25515 and 25520, Health and Safety Code. 19 CCR § 2650, 19 CA ADC § 2650 This database is current through 3/21/14 Register 2014, No. 12 END OF DOCUMENT © 2014 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. Docs In Sequence Table of Contents Westlaw, part of Thomson Reuters © 2014 West I Privacy I Accessibility t "�$ i'FiOMSON REUTERS" http://weblinks.westlaw.com/result/default.aspx?cite=l 9CAADC S2650 &db= 1000937 &find... 4/7/2014 California Code of Regulations Page 1 of 4 California Office of Horne Most Recent Updates Search Help Administrative Law � Welcome to the online source for the . Code of Regulations 22 CA ADC § 66272.62 § 66272.62. Determining the Initial Penalty for Each Violation. Term 22 CCR § 66272.62 Cal. Admin. Code tit. 22, § 66272.62 Barclays Official California Code of Regulations Currentness Title 22. Social Security Division 4.5. Environmental Health Standards for the Management of Hazardous Waste Chapter 22. Enforcement, Inspections, and Informant Rewards "W Article 3. Assessment of Administrative Penalties y§ 66272.62. Determining the Initial Penalty for Each Violation. (a) The Enforcement Agency shall determine an initial penalty for each violation, considering potential harm and the extent of deviation from hazardous waste management requirements. The Enforcement Agency shall use the matrix set forth in Subsection 66272.62(d) to determine the initial penalty for each violation. (b) Potential Harm of the Violation (1) The Enforcement Agency shall consider potential harm to public health and safety and the environment when using the matrix. (2) The categories for degree of potential harm are defined as follows: (A) Major - The characteristics and /or amount of the substance involved present a major threat to human health or safety or the environment and the circumstances of the violation indicate a high potential for harm or, in the case of a violation of financial requirements, coverage is lacking or substantially below the required amount or it is certain or probable that the coverage would be absent or inadequate; (B) Moderate - The characteristics and /or amount of the substance involved do not present a major threat to human health or safety or the environment, and the circumstances of the violation do not indicate a high potential for harm or, in the case of a violation of financial requirements, coverage is significantly below the required amount or it is possible that the coverage would be absent or inadequate; (C) Minimal - The threat presented by the characteristics and the amount of the substance or by the circumstances of the violation are low or, in the case of a violation of financial requirements, coverage is slightly below the required amount or it is unlikely that the coverage would be absent or inadequate. (3) In determining the degree of potential harm, the Enforcement Agency shall consider the following factors: (A) The characteristics of the substance involved, http: / /weblinks. westlaw.com/result /default.aspx ?action= Search &cfid =l &cnt= DOC &db =C... 4/25/2014 California Code of Regulations Page 2 of 4 (B) The amount of the substance involved, (C) The extent to which human life or health is threatened, (D) The extent to which animal life is threatened, (E) The extent to which the environment is threatened, and (F) The extent to which potable water supplies are threatened. (4) Potential harm for violations or financial requirements shall be determined by considering the amount of closure, postclosure, or corrective action costs for which there is no financial assurance or the amount of required liability coverage that is absent, and the likelihood that injury or damages, if they occur, will not be compensated due to an inadequacy in the coverage. (5) A violation must involve the actual management of hazardous waste including the absence of adequate financial assurance for closure, postclosure, corrective action or financial liability coverage, as distinguished from being a 'record- keeping violation, for the violation to have a major potential for harm. "Record- keeping," for purposes of this article, means a requirement to record information, to retain records, and to have documents available for inspection. "Record- keeping" does not include a substantive requirement such as the requirement to have a contingency plan, a waste analysis plan, or a closure plan. The following examples illustrate what is considered "record- keeping" and what is considered a violation that could have a major potential for harm. (A) A failure to record inspections that were in fact completed is a record - keeping violation and would not have a major potential for harm. A failure to conduct inspections according to the schedule is not a record - keeping violation and could have a major potential for harm depending on the circumstances. (B) A failure to retain a copy of a manifest is a record - keeping violation and would not have a major potential for harm. A failure to use a manifest for a shipment of hazardous waste is not a record - keeping violation and could have a major potential for harm depending on the circumstances. (C) A failure to have available for inspection a waste analysis plan that does in fact exist is a record - keeping violation and would not have a major potential for harm. A failure to have a waste analysis plan, or a failure to have a waste analysis plan available to staff who are to implement the plan, is not a record - keeping violation and could have a major potential for harm depending on the circumstances. (6) Financial violations that are strictly paperwork errors or omissions that do not affect actual functioning of adequate financial assurance for closure, postclosure, corrective action, or financial liability coverage are record - keeping violations. Violations involving the absence of adequate financial assurance for closure, postclosure, corrective action, or financial liability coverage are hazardous waste management violations, not record - keeping violations. (7) Groundwater monitoring record - keeping is a fundamental part of the groundwater monitoring requirements. Groundwater monitoring record - keeping violations may have a major, moderate, or minimal potential for harm. The category selected for potential harm shall be based on the extent to which the violation may lead directly to environmental harm, have a potential for harm, or cause an inability to detect releases to groundwater. (c) Extent of Deviation of the Violation (1) The Enforcement Agency shall consider the extent of deviation from hazardous waste management requirements when using the matrix set forth in this section. (2) The categories for extent of deviation from requirements are defined as follows: (A) Major - The act deviates from the requirement to such an extent that the requirement is completely ignored and none of its provisions are complied with, or the function of the requirement is rendered ineffective because some of its provisions are not complied with. http:// weblinks. westlaw.comlresultldefault.aspx ?action= Search &cfid =1 &cnt= DOC &db =C... 4/25/2014 California Code of Regulations Page 3 of 4 (B) Moderate - The act deviates from the requirement, but it functions to some extent although not all of its important provisions are complied with. (C) Minimal - The act deviates somewhat from the requirement. The requirement functions nearly as intended, but not as well as if all provisions had been met. (3) For requirements with more than one part, the Enforcement Agency shall consider the extent of violation in terms of the most significant requirement. (4) For a single requirement, the range of potential deviation from the requirement may vary. For example, if a facility has no contingency plan, the deviation would be major. If a facility has a contingency plan but significant elements are omitted, the deviation would be moderate. If a facility has a contingency plan with only one or two minor elements missing, the deviation would be minimal. (d) The matrix set forth in this subsection shall be used to determine the initial penalty for a violation. The Enforcement Agency shall select a penalty amount from the range provided in the matrix cell that corresponds to the appropriate extent of deviation and the potential harm categories. The numbers in parenthesis in each cell of the following matrix are the midpoints of the range. Determination of Initial Penalty Matrix (in dollars) Extent of Deviation Potential Harm Major Moderate Minimal 25,000 20,000 15,000 Major (22,500) (17,500) (10,500) 20,000 15,000 6,000 20,000 15,000 6,000 Moderate (17,500) (10,500) (4,000) 15,000 6,000 2,000 15,000 6,000 2,000 Minimal (10,500) (4,000) (1,000) 6,000 2,000 0 Note: Authority cited: Sections 25150 and 58012, Health and Safety Code. Reference: Sections 25187 and 25189.2, Health and Safety Code; and Section 11425.50, Government Code. HISTORY 1. New section filed 7- 15 -97; operative 7 -1 -97 (Register 97, No. 29). This interim regulation is exempt from most of the procedural requirements of the Administrative Procedure Act and from review by the Office of Administrative Law pursuant to Government Code section 11400.20 and will expire on December 31, 1998 unless earlier terminated or replaced by, or readopted as, permanent regulations. 2. Expired by its own terms on 12 -31 -98 (Register 99, No. 3). 3. New section filed 1 -14 -99 as an emergency; operative 1 -14 -99 (Register 99, No. 3). A Certificate of Compliance must be transmitted to OAL by 5 -14 -99 or emergency language will be repealed by operation of law on the following day. 4. New section refiled 5 -10 -99 as an emergency; operative 5 -10 -99 (Register 99, No. 20). A Certificate of Compliance must be transmitted to OAL by 9 -7 -99 or emergency language will be repealed by operation of law on the following day. 5. New section refiled 9 -7 -99 as an emergency; operative 9 -7 -99 (Register 99, No. 37). A Certificate of Compliance must be transmitted to OAL by 1 -5 -2000 or emergency language will be repealed by operation of law on the following day. 6. Repealed by operation of Government Code section 11346.1(g) (Register 2000, No. 38). 7. New section filed 12 -13 -2000 as an emergency; operative 12 -13 -2000 (Register 2000, No. 50). A Certificate of Compliance must be transmitted to OAL by 4 -12 -2001 or emergency language will be repealed by operation of law on the following day. http:// weblinks. westlaw.comlresultldefault.aspx ?action= Search &cfid =l &cnt= DOC &db =C... 4/25/2014 California Code of Regulations Page 4 of 4 8. New section refiled 3 -30 -2001 as an emergency; operative 4 -13 -2001 (Register 2001, No. 13). A Certificate of Compliance must be transmitted to OAL by 8 -13 -2001 or emergency language will be repealed by operation of law on the following day. 9. Certificate of Compliance as to 3 -30 -2001 order, including amendment of section, transmitted to OAL 7 -19 -2001 and filed 8 -28 -2001 (Register 2001, No. 35). 22 CCR § 66272.62, �0- 22 CA ADC § 66272-W.-O-62 -w This database is current through 4/11/14 Register 2014, No. 15 END OF DOCUMENT Term © 2014 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. Docs In Sequence Table of Contents Westlaw, part of Thomson Reuters © 2014 West I Privacy I Accessibility THOM ON REUTERS` http:// weblinks. westlaw.com/result/default.aspx ?action= Search &cfid =1 &cnt= DOC &db =C... 4/25/2014 California Code of Regulations Pagel of 3 California Office of Home Most Recent Updates Search Help Administrative Lava d Welcome to the online source for the California Code of Regulations 22 CA ADC § 66272.68 § 66272.68. Adjustments to the Total Base Penalty. Term 22 CCR § 66272.68 Cal. Admin. Code tit. 221 § 66272.68 Barclays Official California Code of Regulations Currentness Title 22. Social Security Division 4.5. Environmental Health Standards for the Management of Hazardous Waste Chapter 22. Enforcement, Inspections, and Informant Rewards "k Article 3. Assessment of Administrative Penalties Oil§ 66272.68. Adjustments to the Total Base Penalty. The Enforcement Agency shall adjust the total base penalty considering each of the following adjustment factors: (a) Cooperation: The Enforcement Agency shall consider the violator's cooperation and efforts to return to compliance. Cooperation in achieving compliance is the standard and all necessary good faith efforts to comply with requirements must be made. Adjustments shall be based on the violator's efforts to return to compliance after being notified of the violations by the Enforcement Agency. The adjustment shall be made using the following guidelines: (b) Prophylactic Effect: The total base penalty may be adjusted upward or downward to ensure that the penalty is sufficient to provide a prophylactic effect on both the violator and the regulated community as a whole. http:// weblinks. westlaw.comlresultldefault.aspx ?action= Search &cfid =l &cnt= DOC &db =C... 4/25/2014 Adjustment Factors for Cooperation Degree of Cooperation Adjustment /Effort Factor Circumstance Extraordinary Downward Violator exceeded the minimum adjustment of requirements in returning to up to 25 percent compliance or returned to compliance faster than requested. Good Faith No adjustment Violator demonstrated a cooperative effo rt. Recalcitrance Upward Violator failed to cooperate, delayed adjustment of compliance, created unnecessary up to 25 percent obstacles to achieving compliance, or the compliance submittal failed to meet requirements. Refusal Upward adjustment Violator intentionally failed to return of 50 to 100 percent to compliance or to allow clean -up operations to take place. This does not include refusal to allow inspections. (b) Prophylactic Effect: The total base penalty may be adjusted upward or downward to ensure that the penalty is sufficient to provide a prophylactic effect on both the violator and the regulated community as a whole. http:// weblinks. westlaw.comlresultldefault.aspx ?action= Search &cfid =l &cnt= DOC &db =C... 4/25/2014 California Code of Regulations Page 2 of 3 (c) Compliance History: The total base penalty may be decreased by five percent for each previous consecutive Enforcement Agency inspection report that has had no violations noted, up to a total reduction of ten percent. A separate, additional downward adjustment of 15 percent may be granted if the violator has a current International Organization for Standardization (ISO) 14001 Certificate. The total base penalty may be increased if the violator has demonstrated a history of noncompliance over the past five (5) years. The maximum adjustment factor for compliance history is an upward adjustment of 100 percent. When adjusting the penalty for compliance history, the Enforcement Agency shall consider the following criteria: (1) Previous violations at the site in question receive more weight than previous violations at another site owned or operated by the same person; (2) Recent violations receive more weight than older violations; (3) The same or substantially similar previous violations receive more weight than previous unrelated violations. (d) Ability to Pay: If the violator has provided the Enforcement Agency with the financial information necessary to assess the violator's ability to pay, the payment of the final penalty may be extended over a period of time if Immediate, full payment would cause, in the judgment of the Enforcement Agency, extreme financial hardship. If extending the penalty payment over a period of time would cause, in the judgment of the Enforcement Agency, extreme financial hardship, the penalty may be reduced. No adjustment for ability to pay may be made if the penalty has been adjusted upward because of failure to cooperate, pursuant to subsection (a), or because of compliance history, pursuant to subsection (c). Note: Authority cited: Sections 25150 and 58012, Health and Safety Code. Reference: Sections 25187 and 25189.2 Health and Safety Code; and Section 11425.50, Government Code. HISTORY 1. New section filed 1 -14 -99 as an emergency; operative 1 -14 -99 (Register 99, No. 3). A Certificate of Compliance must be transmitted to OAL by 5 -14 -99 or emergency language will be repealed by operation of law on the following day. 2. New section refiled 5 -10 -99 as an emergency; operative 5 -10 -99 (Register 99, No. 20). A Certificate of Compliance must be transmitted to OAL by 9 -7 -99 or emergency language will be repealed by operation of law on the following day. 3. New section refiled 9 -7 -99 as an emergency; operative 9 -7 -99 (Register 99, No. 37). A Certificate of Compliance must be transmitted to OAL by 1 -5 -2000 or emergency language will be repealed by operation of law on the following day. 4. Repealed by operation of Government Code section 11346.1(g) (Register 2000, No. 38). 5. New section filed 12 -13 -2000 as an emergency; operative 12 -13 -2000 (Register 2000, No. 50). A Certificate of Compliance must be transmitted to OAL by 4 -12 -2001 or emergency language will be repealed by operation of law on the following day. 6. New section refiled 3 -30 -2001 as an emergency; operative 4 -13 -2001 (Register 2001, No. 13). A Certificate of Compliance must be transmitted to OAL by 8 -13 -2001 or emergency language will be repealed by operation of law on the following day. 7. Certificate of Compliance as to 3 -30 -2001 order, including amendment of section, transmitted to OAL 7 -19 -2001 and filed 8 -28 -2001 (Register 2001, No. 35). 22 CCR § 66272.68, 422 CA ADC § 66272 68 This database is current through 4/11/14 Register 2014, No. 15 END OF DOCUMENT http:// weblinks. westlaw.comlresultldefault.aspx ?action= Search &cfid =l &cnt= DOC &db =C... 4/25/2014 California Code of Regulations Page 1 of 2 California Office of Home Most Recent Updates Search Help Administrative Law M'^ Welcome to the online source for the = ' = California Code of Regulations 22 CA ADC § 66272.69 § 66272.69. Final Penalty. Term 22 CCR § 66272.69 Cal. Admin. Code tit. 22, § 66272.69 Barclays Official California Code of Regulations Currentness Title 22. Social Security Division 4.5. Environmental Health Standards for the Management of Hazardous Waste Chapter 22. Enforcement, Inspections, and Informant Rewards RW Article 3. Assessment of Administrative Penalties y§ 66272.69. Final Penalty. The final penalty consists of the total base penalty, as defined in Section 66272.67, with any adjustments made pursuant to the adjustment factors set forth in Section 66272.68. The final penalty shall not exceed the statutory maximum. Note: Authority cited: Sections 25150 and 58012, Health and Safety Code. Reference: Sections 25187 and 25189.2 Health and Safety Code; and Section 11425.50, Government Code. HISTORY 1. New section filed 12 -13 -2000 as an emergency; operative 12 -13 -2000 (Register 2000, No. 50). A Certificate of Compliance must be transmitted to OAL by 4 -12 -2001 or emergency language will be repealed by operation of law on the following day. 2. New section refiled 3 -30 -2001 as an emergency; operative 4 -13 -2001 (Register 2001, No. 13). A Certificate of Compliance must be transmitted to OAL by 8 -13 -2001 or emergency language will be repealed by operation of law on the following day. 3. Certificate of Compliance as to 3 -30 -2001 order, including amendment of section, transmitted to OAL 7 -19 -2001 and filed 8 -28 -2001 (Register 2001, No. 35). 22 CCR § 66272.69, X22 CA ADC § 66272 -►.f69 -sh. This database is current through 4/11/14 Register 2014, No. 15 END OF DOCUMENT 41 Term © 2014 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. http: // weblinks. westlaw.com /result /default.aspx ?action= Search &cfid =l &cnt= DOC &db =C... 4/25/2014 California Code of Regulations Docs In Sequence Table of Contents Westlaw, part of Thomson Reuters O 2014 West I Privacy i Accessibility Page 2 of 2 �• T44004SON REUMS- http: // weblinks .westlaw.com /result/default.aspx ?action= Search &cfid =l &cnt= DOC &db =C... 4/25/2014 EXHIBIT C DETERMINATION OF PENALTIES 7 tiJ CL ro; r1 MU C1) c r CD (� t � r (t,. _ N �.- -� rn su•. i �' ^,. C— iii D tU �y.. 0 C) r� DTs C7 a; 7D FT'l rp Cy r) ILL, '•'` �T. , ter I/r " -;•� C7 ull ♦ , C J. .-,� ..l 4p --yy L.--c C) w. . r) CD c) c) (Z) ( -j S))k pp,d �5 LJ 1 ryry i ~ a. .. (I) (D L3 0 'Ti > > Q > w > LU i7 f� (D [2 €1 Q) 0) [.L 0) CD C) — U) in - — en Cn en v� _ - � • cu 0. (D (D (D Cry f. C) r_n (_) M . CLJ (X) �. Cab -€9) c)�� wig C3 � U, -� 0 � CFA C7 o Co ( - u- --1 P� t] C�^• �J CD C) C) C) Q C) C) C) (D ` C:) r. y CD v `G C7 v n 2 Z7 �7 Zl (: C C - Cp CD q q �[ (D, p • V) w D N . O O O O O O O O N` �• Dl r �- cD (D, ' � to M, (D (D �Qx (D o. rt � C3 : .a," 0 3 CL (n (D 0 n� 0 OD �_? c� Ti (]t . r. � O C7 - ei (D Q ----• ( CFl I Q l< 0 C) - (D' fli { -7 < > O O O O O O O-A C) Ca C fD > . (P C3 a- Dj x 00000000 ;' OOOOOOOCfl ZJ O (D `C CL Aa LD Ct1 x A3 x n C? ca CD Cf) CCD U7 O CD a n> v co cn m 0 (D (D .• m r. m '= o) 0 CD Q3 m 00000000 ,� rQ CU rn W :3 N CD M M C� CD CD `G N K K `C iti] Op i.). CD CD `]1 u C tse to p a' rs c3 c� c7' co (0O 00 mOOOOOOO(D �ciC: CL Ct O O O CD n w Lti :3 CD ti x y. r] OOO0000o O r 3 EXHIBIT D • _ _ fir= tj "� k r �a.._ .�{ ,_ IjjI t .... , ti..r..1r- r.i..a:�iW'[':�_. +rti•sw:`.wreJlL .,.•FMC- •._sa�•,.s.MY� ...aa_,... .__...ae.�,V 'Li,��,. A .,.. ._�_ ...... „.a ---- .... µ`.ms • IF �� � r ��. • -ter -.. � - !k � Si"i. Y ! l 7 .w�•. F y . �'.,• - -5 - � Y F it ' � ,lt. , y r � L �x S � T � r. Jar 'rte f - + X f ~ �4k • , r r � V�- , .�'''�+,rwM �:ite: ` S •” a ,„ �� .�,, 'F � • � ' ±� i1• fit° 1�--] SIGNIFICANT OPERATING PROGRAM CHANGES SUMMARY OF INCREASES BY DEPARTMENT Economic Development ■ Strategic Plan Implementation $ 30,000 $ 65,000 ■ Reallocation of Finance & IT Analyst Function $ - Support Services ■ Local Revenue Measure Education $ 50,000 Housing Program ■ Housing Program $ (10,842) $ 18,214 Fire Training ■ Recruit Academy $ 79,600 Hazard Prevention ■ Hazard Fuel Reduction in Open Space $ 5,000 $ 5,000 Network Services ■ IT Assistant - Help Desk $ 7,700 $ 15,300 ■ AT &T Telephone Services $ - $ - Risk Management ■ Increase in Liability Insurance $ 74,000 $ 74,000 ■ Increase in Workers Compensation Annual Contribution $ 489,000 $ 489,000 Human Relations ■ Low Income Water & Sewer Subsidy Funding $ 26,000 $ 29,000 ■ Prado Day Center Safe Parking & Warming Station $ 15,000 $ 15,000 Ranger Services ■ Staffing $ 59,300 $ 75,700 ■ Minor Capital $ 5,000 $ 5,000 Patrol ■ Enhancing Police Resources $ 314,100 $ 310,400 Administration 0 Elimination of Booking Fee Budget $ (252,000) $ (252,000) Support Services • Computer Aided Dispatch Server Warranty Extension $ 9,500 SUMMARY OF INCREASES BY DEPARTMENT 2013-141 2014 -15 Parking Services ■ Organizational Assessment and staffing retention $ 77,400 $ 16,200 ■ Parking Strucutres Fire Alarm Testing $ 8,400 $ 8,600 Transit ■ Contract Services $ 80,000 $ 20,000 ■ Employee Training $ 4,300 Creek & Flood Protection ■ Annual Software Licensing & Maintenance - CMMS $ 14,700 $ 14,700 Parks Maintenance ■ Landscape Area Contract Services $ 14,600 $ 14,800 Tree Maintenance ■ Conversion of Temporary Tree Maintenance Staff $ 21,000 $ 21,000 Fleet ■ Corporation Yard Spill Prevention Control $ 28,500 $ 23,000 Utilities Administration ■ Anti - Backlow Valve at 879 Morro Street $ 13,200 ■ Utilities Site- Specific Safety Plans $ 25,000 ■ Temporary Utilities Project Management $ 117,600 Water Treatment ■ Machinery & Equipment and Laboratory Services $ 10,000 $ 16,000 Water Distribution /Wastewater Collection ■ Annual Software Licensing & Maintenance - CMMS $ 28,700 $ 28,700 Utilities Customer Service ■ Replacement of Electric Scooters $ 10,000 Wastwater Administration ■ Water Quality Studies $ 75,000 $ 75,000 Water Reclamation Facility ■ Maintenance Projects $ 55,000 $ 25,000 Water Quality Laboratory ■ NPDES Permit Sampling and Analyses $ 19,000 $ 19,000 TOTAL S 1,494,258 1 $ 1,141.114 SIGNIFICANT OPERATING PROGRAM CHANGE - GENERAL GOVERNMENT CORPORATION YARD SPILL PREVENTION CONTROL AND COUNTERMEASURES (SPCC) PROGRAM Summary of Change: Provide for ongoing compliance with regulations for spill prevention, control, and countermeasures. Fiscal Impact: One -time cost of $20,500 in 2013 -14 and $ 15,000 in 2014 -15, and ongoing costs of $8,000 annually beginning in 2013 -14. Service Level Impact: As part of the continued resolve to comply with Air Pollution Control District (APCD), California Air Resource Board (CARB), California Department of Transportation (DOT) and environmental rules and regulations, ongoing maintenance, and improvements in the City's compliance program are needed to address containment and countermeasures for spills, waste disposal costs, emission rules, and above ground fuel tank monitoring. KEY OBJECTIVES 1. Compliance with mandatory state and local laws, including new emission rules and regulations for above ground fuel tanks. 2. Prevention of spills, containment and countermeasures to ensure that waste is disposed of safely and in the timeline identified by law. 3. Adequate funding for rising costs of waste disposal EXISTING SITUATION: FACTORS DRIVING THE NEED FOR CHANGE 1. There are new rules and regulations that affect above ground fuel tanks that include retrofitting fuel vent cap and replacement of phase one enhanced vapor recovery devices for unleaded products. (Estimated Cost $13,000) 2. Costs are rising for services to properly dispose of hazardous waste. (Estimated Cost $8,000) 3. The City is required by Federal law to prepare and maintain a SPCC program and plan. The implementation of this requirement is through the City's Fire Dcpartment and regulated by the County of San Luis Obispo Hazardous Materials program for Certified Unified Program Agencies (CUPA). Revisions are required with any changes to the facility and at no more than 5 year intervals otherwise. The original plan was developed in -house to meet a short deadline for compliance. It is prudent and timely for the SPCC to be reviewed and updated by a private firm specializing in this area, to ensure the City is compliant with legal requirements. While this is a Federal requirement, this keeps the City up to date on preventing spills, which benefits both staff and the community. (Estimated Cost $7,500) 4. The Corporation Yard currently has a berm, constructed as a stop -gap measure, at the low point of the facility to prevent the flow of diesel fuel beyond City property and onto the Caltrans easement between the property and Highway 101. The temporary containment berm is showing signs of failure and a more permanent replacement is warranted. (Estimated Cost $15,000) GOAL AND POLICY LINKS 1. Major City Goals to Sustain Essential Services, Infrastructure and Fiscal Health —preserving public health and safety. 2. One of the program activities is to coordinate, implement, permit and provide staff training for the City's Hazardous Materials Business Plan and Spill Prevention Control & Countermeasures Plan for Above Ground Storage Tanks. SIGNIFICANT OPERATING PROGRAM CHANGE - GENERAL GOVERNMENT CORPORATION YARD SPILL PREVENTION CONTROL AND COUNTERMEASURES (SPCC) PROGRAM PROGRAM WORK COMPLETED Quotes have been received to retrofit and implement the required CARB emission devices on the City's fuel tanks. ENVIRONMENTAL REVIEW No environmental review required PROGRAM CONSTRAINTS AND LIMITATIONS No significant project constraints, limitations, or environmental review requirements. Design and construction of new spill containment will be subject to approval by the City's Fire Department and the County of San Luis Obispo CUPA. STAKEHOLDERS Users of fleet fueling services, the Corporation Yard staff, and the City seeking to maintain compliance with state and local laws. IMPLEMENTATION Task Date 1. Retrofit all fuel station vent caps with CARB mandated vent caps April 12013 2. Retrofit all fuel station components to required phase 1 enhanced vapor recovery July 1, 2014 3. Complete design of a containment system at the Corporation Yard low point May 2014 4. Complete construction of spill containment October 2014 KEY PROGRAM ASSUMPTIONS Cost projections are based on quotations and construction of similar facilities. PROGRAM MANAGER AND TEAM SUPPORT Program Manager: Fleet Maintenance Supervisor Project Team: Fleet Maintenance Supervisor, City Engineer, and Public Works Administrative Analyst ALTERNATIVES 1. Continue the Status Quo or Defer or Re -Phase the Request. Fines and fees will be assessed for non - compliance. 2. Change the Scope of Request. The monitoring program is not part of the mandated work of the SPCC, but provides benefits to the SPCC and Fleet Maintenance programs. The software allows remote access of fuel information. The exact amount of the fuel in the tanks is known, rather than approximations now used by Fleet. Exact amounts allow the City to maximize delivery of fuel. Currently, fuel deliveries must be underestimated to prevent overfill. The system also identifies contaminants in the fuel, and leak monitoring. While leak monitoring is not currently required, it is anticipated to be required in the near future. SIGNIFICANT OPERATING PROGRAM CHANGE — GENERAL GOVERNMENT CORPORATION YARD SPILL PREVENTION CONTROL AND COUNTERMEASURES (SPCC) PROGRAM OPERATING PROGRAM 50340 - Vehicle and Equipment Maintenance COST SUMMARY Line Item Description Account No. 2013 -14 2014 -15 5- )ntract Sea -vices ,500 a SPCC Plan U date 100.50340.7227 7,500 Other OperatLug Expenditures' 1,000 Operating Materials & Supplies Dis oral Costs 1100.50340.7843 100.50340.7243 13,000 8;000 8,000 Minor Capital 0 I koo Spill Containment Structure 1100.50340.7957 15,000 Total O peratiog Costs 28,500 23,000